CONSTITUTIONAL LAW – executive power of the Commonwealth – common law prerogative of the Crown – relationship – abrogation by statute – principles of construction – no presumption in favour of abrogation – national sovereignty – exclusion of aliens – whether element of executive power – whether abrogated by Migration Act 1958 (Cth) – exclusion of aliens from Australian territory – whether valid exercise of executive power – incidents of power to exclude – restraints upon liberty – whether unlawful.

THE HONOURABLE PHILIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, THE COMMONWEALTH OF AUSTRALIA AND WILLIAM JOHN FARMER v ERIC VADARLIS, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND AMNESTY INTERNATIONAL LIMITED

V 1007 OF 21001

THE HONOURABLE PHILIP RUDDOCK MP, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, THE HONOURABLE DARYL WILLIAMS, ATTORNEY-GENERAL, THE HONOURABLE PETER REITH, MINISTER OF DEFENCE AND THE COMMONWEALTH OF AUSTRALIA V VICTORIAN COUNCIL FOR CIVIL LIBERTIES INC, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND AMNESTY INTERNATIONAL LIMITED

Introduction

1These are appeals against orders made by North J requiring the Commonwealth and the other appellants to release the persons rescued at sea who were brought on board M V Tampa on or about 26 August 2001 and who were then transferred to HMAS Manoora on or about 3 September 2001. His Honour ordered that the appellants bring them ashore on the mainland of Australia. Provision was made for the stay of the operation of the orders until the determination of any appeal to the Full Court of this Court. The orders did not apply in respect of any of the persons rescued who indicated to the appellants that they did not wish to be released and brought ashore to a place on the mainland of Australia.

2The circumstances giving rise to these proceedings, the relevant facts, and the issues before North J and before us on these appeals, are set out in detail in the reasons for judgment of French J. I have had the advantage of reading those reasons in draft form and I adopt what his Honour has said about those matters.

3I should begin by referring to the scope of the issues before this Court on appeal. The primary argument advanced on behalf of the appellants by the Solicitor-General for the Commonwealth was that North J erred in holding that the executive power of the Commonwealth did not authorise and support the expulsion from Australia of the people rescued by the M V Tampa and their detention for that purpose. A second argument was that the people rescued by the M V Tampa were not relevantly detained.

WAS THERE LAWFUL AUTHORITY FOR THE EXECUTIVE ACTION TAKEN?

4It cannot be doubted that a nation state has a sovereign power to exclude illegally entering aliens from its borders, and to legislate for this purpose: Robtelmes v Brennan (1906) 4 CLR 395 (“Robtelmes”); Attorney-General for Canada v Cain (1906) AC 547 (“Cain’s Case”). It is said that, in this case, the people rescued by the M V Tampa may be lawfully prevented from entering Australia in the exercise of this sovereign power, but not in exercise of power derived from legislation.

5There is also no doubt that, as a general principle of law, there is no executive authority, apart from that conferred by statute, to subject anyone in Australia, citizen or non-citizen, to detention. In LimChu Keung Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (“Lim”), Brennan, Deane and Dawson JJ said (at 19):

“Since the common law knows neither lettre de cachet nor other executive warrant authorizing arbitrary arrest or detention, any officer of the Commonwealth Executive who purports to authorize or enforce the detention in custody of such an alien without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision.” [citations omitted]

See also Mason CJ (at 13) and McHugh J (at 63) to the same effect.

6As a general principle, the Executive cannot expel a person from Australia without statutory authority, although whether that principle applies to non-resident unlawful non-citizens is disputed here: Brown v Lizars (1905) 2 CLR 837 (“Brown”); Robtlemes; Re Bolton; Ex Parte Beane (1987) 162 CLR 514 (“Bolton”)at 528. But the Solicitor-General submitted that a non-statutory executive power to prevent unlawful non-citizens from entering Australia carries with it necessary ancillary powers, which may include power to detain and expel an unlawful non-citizen for the purposes of protecting Australia’s borders.

7It may be accepted that ancillary powers of detention and expulsion must travel with a power to exclude (see Cain’s Case at 546; Robtelmes per O’Connor J at 420). But on the view I take, the undoubted power of the Executive to protect Australia’s borders against the entry of unlawful non-citizens in times of peace derives only from statute.

SOURCES OF EXECUTIVE POWER

8The Executive power of the Commonwealth is described in s 61 of the Constitution. It reads:

"The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth."

Prerogative power

9The Solicitor-General’s principal argument was that the appellants acted in exercise of a prerogative power, which is embraced by s 61. It may be accepted that the power of the Executive under s 61 includes powers accorded to the Crown at common law (Barton v The Commonwealth of Australia (1974) 131 CLR 477 (“Barton”) at 498 per Mason J) and the first question is, therefore, whether there is a prerogative power of the nature contended for by the Solicitor-General.

10The principal case relied on to demonstrate that the English Crown enjoys a prerogative right to exclude aliens is Musgrove v Chung Teeong Toy [1891] AC 272 (“Musgrove”). In that case, the Privy Council considered an appeal from a decision of the Supreme Court of Victoria: Chung Teeong Toy v Musgrove (1888) 14 VLR 349 (“Toy”). Toy came before all the available members of the Supreme Court (Mr Justice Webb being absent on leave) on a reference of questions of law to the Full Court by Kerferd J. The applicant, a Chinese immigrant who had travelled to Victoria on the SS Afghan, had been prevented from landing by customs officers. He applied to the Supreme Court for a writ of habeas corpus in response to which the customs officials asserted a prerogative of the Crown to exclude alien friends. Only two members of the six judges who constituted the full bench of the Supreme Court (Higinbotham CJ and Kerferd J) upheld the prerogative claim of the customs officers. The other judges (Williams, Holroyd, A’Beckett, and Wrenfordsley JJ) rejected the claim of prerogative power, and considered that habeas corpus should issue for the reason that the colonial government did not have the requisite prerogative power. The decision thus turned upon whether the colonial government enjoyed all the rights and privileges of the English Crown and the majority held that it did not. One of the judges, however, expressed a view on that larger subject. Holroyd J, after an historical analysis, observed that (at 425):

“On a question of this kind I attach comparatively little importance to what was done or said before the close of the sixteenth century. Up to that time constitutional usage was quite uncrystallized; in fact, it had hardly begun to settle. Before then hundreds of precedents might be found, stretches of Royal authority unchallenged at the time, for acts which were afterwards discovered to be gross infringements of the privileges of Parliament or of the liberties of the people. But I am very much impressed with the fact that for nearly three centuries no British Sovereign has attempted to exercise the right of expelling aliens or of preventing their intrusion in time of peace by virtue of his prerogative; and no British Minister, not even the strongest advocate in theory for the plenitude of the Royal authority, has ventured in this matter to reduce his theory into practice.”

11Williams (at 415) and A’Beckett JJ (at 434) were content to assume, without offering any opinion, that the prerogative existed in England.

12On appeal, the Privy Council held that the judges who comprised the majority of the Victorian Supreme Court were wrong to allow the applicant access to the Court and expressly stated that, having allowed the appeal on this narrow ground, it would not be appropriate to express any opinion upon the question of what rights the colonial governments derived from the English Crown, or what prerogative rights existed in the English Crown (at 283).

13Of the Privy Council’s decision in Musgrove, H V Evatt said:

“The Privy Council in the judgment in Musgrove v Toy refer to “the very able judgment of Mr Justice Kerferd” and we are therefore justified in referring to the remarks of that Judge as being fairly expressive of the opinion of the Privy Council …”

- The Royal Prerogative, LBC, 1987, at 99.

14It seems to me however that the approval of Kerferd J’s reasons was not as broad as HV Evatt concludes. The Privy Council said (at 283):

“their Lordships feel bound, upon the grounds which they have indicated, to abstain from pronouncing upon them on the present occasion. For the reasons which have been submitted, and which are indeed involved in the very able judgment of Mr. Justice Kerferd … their Lordships will humbly recommend her Majesty that the judgment … be reversed.” [emphasis added]

I read this as acknowledging that Kerferd J had given as one of his reasons for judgment the reason that commended itself to their Lordships, but not as going any further. I should also note that the limited ground on which the appeal was decided was acknowledged by O’Connor J in Robtelmes at 417.

15Musgrove has however also been cited (by way of obiter dicta) as authority for a broad proposition that the Sovereign can exclude aliens: Johnstone v Pedlar [1921] 2 AC 262, 275 per Viscount Cave, 296 per Lord Philimore; R v Carter; Ex parte Kisch (1934) 52 CLR 221 (“Kisch”) at 223 per Evatt J. But Johnstone v Pedlar was a case that concerned an Irish citizen who took part in illegal activity in Ireland in 1916, and sought the recovery of money that had been seized from him at the time of his arrest. The case turned, as in Musgrove, on the limited extent of an alien’s ability to maintain actions in Courts. It was not a case concerning questions such as arise here, and it is by no means clear that the reference to the Sovereign having a right to refuse an alien permission to enter the realm was directed to the prerogative. Lord Philimore’s statement (at 296) that the King can refuse an alien admission to the realm, a proposition that his Lordship said was established by Musgrove, is not in my view supported by that case. In Kisch, a ship’s master purported to detain Mr Kisch on board, on the ground that he believed him to be an illegal immigrant under the Immigration Act 1901-30 (Cth). No question arose as to the power or prerogative of the Crown to exclude an alien from the realm.

16In the same year as Toy was decided, the Supreme Court of New South Wales also had to consider applications for writs of habeas corpus by Chinese citizens who were prevented by police from disembarking from the SSAfghan: Ex parte Lo Pak (1888) 9 NSWLR 221 (“Lo Pak”); Ex parte Leong Kum (1888) 9 NSWLR 251 (“Leong Kum”). The Crown’s argument that the New South Wales Government had a prerogative power to prevent foreigners entering into the colony was rejected: Lo Pak at 237 per Darley CJ; at 244 per Windeyer J and at 248 per Foster J; Leong Kum at 255 – 256 per Darley CJ; 261-262 per Windeyer J; 267 per Innes J. Although the cases were resolved on the basis that recognised a distinction between the sovereign power of the English Crown, on the one hand, and the more limited power of the colonial executive government on the other, two judges expressed an opinion on the wider question. In Lo Pak the Chief Justice said (at 237):

“It may be that the Sovereign of England may have such a power according to the principles laid down by writers on international law, but so far as I can understand, it has not been a power that has ever been exercised in England. On the contrary … it has been considered necessary to pass a statute for the express purpose of enabling that to be done.”

17In Leong Kum, Innes J expressed a similar view (at 266 – 267):

“It seems, however, somewhat strange that the learned counsel, who has argued the case with his accustomed zeal and ability, has not been able to put before the Court a single instance in which any such proclamation has issued, or any such order has been made in the case of a subject of a nation in amity with England.”

18In Robtelmes Griffiths CJ doubted "…whether the Executive authority of Australia, or of any State, could deport an alien except under the conditions authorized by some Statute…" but found it "not necessary to discuss that question now" (403). Barton J observed (at 414 – 5):

“Whether expulsion in Great Britain or in one of her self-governing Colonies or States, requires statutory authority has, no doubt, been the subject of some hesitation on the part of eminent lawyers, but it is not necessary for us to decide that question. It does not arise. The question here is, first, whether the statutory authority exists, and next, whether it has been properly exercised? Now, in the Encyclopśdia of the Laws of England, vol. 5, p. 268, there are a few lines that state that question very clearly:-

‘There are dicta of Blackstone (1 Com. 366) and Chitty (Pleas of Crown ed. 1820 p. 49) to the effect that the Crown by its prerogative, can expel even alien friends; but there does not seem to have been any attempt since the Revolution to exercise such prerogative, and the extrusion of alien friends has since then always been effected by statutory authority.’

The question to-day is one of statutory authority.”

19The doubts about the continued existence of the prerogative power that would seem to underlie the judicial observations to which I have referred raise the difficult question, on which opinion is divided, whether a particular prerogative power may revive after it has fallen into disuse. There is an argument that a long period of disuse extinguishes the prerogative, because it would be illusory to say that Parliament has, in such circumstances, made a choice to leave the prerogative in the Crown’s hands: Winterton, Parliament, the Executive, and the Governor General, Melbourne University Press, 1983 at 118 - 119. Another view is that the prerogative may be revived in “propitious” circumstances, but not when it would be “grossly anomalous and anachronistic” (the phrase is taken from a dissenting judgment in M’Kendrick v Sinclair 1972 SC (HL) 25, 60-61): de Smith, Constitutional and Administrative Law, 3rd ed, 1977 at 11; Markesinis, “The Royal Prerogative Revisited” [1973] Cambridge Law Journal 287, 299-305.

20Some of these judicial and extra-judicial observations can be seen to support the proposition that prerogative powers can be extinguished, not merely because legislation has been passed, but because the prerogative powers have become incompatible with modern constitutional jurisprudence. For example, considerations of this nature appear to emerge in the passage from the judgment of Holroyd J in Toy at 425 (reproduced at para [10] above) in which his Honour was “impressed” with the absence of any attempt to exercise the prerogative in three centuries. Lord Reid’s speech in Burma Oil Company (Burma Trading) Ltd v Lord Advocate [1965] AC 75 (at 100) illustrates (in relation to a different prerogative power) the same approach:

“So … we must try to see what the position was after it became clear that sovereignty resided in the King in Parliament. Any rights thereafter exercised by the King (or the executive) alone must be regarded as a part of sovereignty which Parliament chose to leave in his hands.”

21In 1890 W F Craies argued that the universal resort to legislation is proof of the opinion that the prerogative to exclude aliens in times of peace “if not absolutely gone, was deemed too weak and rusty for independent exercise”: “The Right of Aliens to Enter British Territory” (1890) 6 Law Quarterly Review 27 at 37. A contrary case, based substantially upon very early instances of the exercise of the prerogative, was put by T W Haycraft in “Alien Legislation and the Prerogative of the Crown” [1897] Law Quarterly Review 165 (which McGregor J found “more convincing” in his dissenting judgment in Minister for Immigration and Ethnic Affairs v Mayer (1985) 7 FCR 254 at 261).

22Some of the historical reasons why the prerogative power to exclude aliens came to be viewed as at best doubtful are illuminated by the following passage where, having set out early authorities in support of its existence, Professor Holdsworth said:

“Nevertheless the influences which were making for a denial of this prerogative were beginning to be felt in the sixteenth century; and they gathered strength in the seventeenth, eighteenth, and early nineteenth centuries …During the greater part of the eighteenth century, there appear to be very few instances in which the Crown used its prerogative to exclude or to expel aliens; and when, at the end of the century, it was thought desirable to exclude aliens, statutory powers were got … These statues were passed to exclude aliens who, it was though, might spread in England the ideas of the French Revolution. They were therefore opposed by the new Whigs who sympathized with these ideas. In 1816 Romilly, Mackintosh, and Denman denied that the Crown had the wide prerogative attributed to it by Eldon and Ellenborough; the same thesis was maintained in 1825 in a learned article in the Edinburgh Review; and in 1890 it was supported by Mr. Craies.” [citations omitted]

-Sir William Holdsworth, A History of English Law, Vol X, Sweet and Maxwell, (1938) at 396-7.

23In a footnote to this passage, Professor Holdsworth notes that the last occasion on which it appears that a prerogative power to expel or exclude non-citizens was in 1771, when the Crown directed that Jews “unable to pay the usual freight”, should, unless they had a passport from an ambassador, be excluded from British territory.

24The parliamentary reporters record Sir James Mackintosh’s speech, referred to by Professor Holdsworth in the extract above, as follows (at 468):

“In the discussion of last session he had called for proofs of the existence of the prerogative said to be in the Crown, of sending out of the realm alien friends in time of peace … Till an answer was made to such a demand, he had suspended his opinion. He only ventured then to doubt the existence of such a right. But from the proofs which had been not produced and the arguments which had been offered after a twelvemonth’s leisure for research, he now thought himself justified in declaring, that such a prerogative was not warranted by law.”

- House of Commons 1816, Debates (Hansard), 10 May 1816, 446 – 470.

25In his speech, Sir James Mackintosh said that the best authority in favour of the prerogative was that found in Blackstone’s Commentaries, but that they were flawed by reason of their failure to consider the distinction between sovereign power at international law, and prerogative power (at 470):

“[Blackstone] quoted the assertion of Puffendorff, that all states must have a power to regulate the admission of strangers … Certainly, such rights exist in all states; but by whom to be exercised in each commonwealth was a question to be answered by the laws of each country.”

26The preponderance of opinion by the text writers supports the view that, by the end of the nineteenth century, in English jurisprudence, the power to exclude aliens in times of peace was not considered to be part of the prerogative. In Steven and Haynes, Forsyth's Cases and Opinions on Constitutional Law (1869) the learned authors say (at 181): “the Crown has no power by its prerogative alone, to send anyone, whether he be a subject or an alien compulsorily out of the realm." Closer to the end of the nineteenth century, W F Craies wrote:

“There is an increasing disposition and even a popular demand for the use by the Executive, not only of the dispensing power with reference to comparatively unpopular laws, but also of the prerogative instead of the slower methods of modern legislation …

The question for solution appears to be this: whether the Crown has, independently of the Legislature, any right to say in time of peace to any foreigner who is within the empire or who knocks at its gates, that he must depart or may not enter …

Except with reference to foreign sovereigns, their ambassadors and their forces, upon a careful historical examination of the subject, there seems to be no prerogative of the Crown either to exclude or expel aliens. Whether they be innocent immigrants or sojourners or fugitive criminals of the deepest dye, their right to land or remain upon British soil depends not upon the will of the Crown but upon the voice of the Legislature; nay, more, this right has existed ever since the Great Charter, if not even earlier, and is so ancient that no prerogative to the contrary can with any certainty be vouched”[emphasis added].

-“The Right of Aliens to enter British Territory” (1890) 6 Law Quarterly Review, 27 at 27 – 29.

27It is now necessary to refer to Cain’s case, which was relied upon in support of the continued existence of the prerogative power to exclude aliens. That, however, was a case about the power of the Dominion Government of Canada to legislate for the exclusion of aliens. It is by no means clear whether the observations by way of obiter dicta about the rights possessed by the supreme power in every state to refuse to permit an alien to enter that state were intended to be a reference to the prerogative at all. Certainly, the later reference to the decisions in Re Adam (1837) 1 Moo PC 460 and Donegani v Donegani III Knapp 63 add nothing to the argument because those cases turned upon the French Code Civil: see the observations of Barton J in Robtelmes (at 408) and Holroyd J in Toy (at 424) to this effect. See also H V Evatt, The Royal Prerogative, 1987, at 129 – 130 and Craies, “The Right of Aliens to Enter British Territory” (1890) 6 Law Quarterly Review 27 at 40.

28Cain’s Case has been followed by the High Court in the context of affirming the validity of legislation to exclude or expel aliens: Robtlemes; Ah Yin v Christie (1907) 4 CLR 1428; Ng Kwan v Commonwealth of Australia (1949) 80 CLR 535. In R v Bottrill; Ex parte Kuechenmeister [1947] 1 KB 41, Cain’s Case was cited for the broad proposition that there exists in England a royal prerogative to expel or detain an alien (at 51 per Lord Scott). But that case concerned an application by a German national, a permanent resident in England since 1931, interned at Wimbledon during World War II, and it was expressly acknowledged that any transfer to the Parliament of power to exclude “friendly aliens” was irrelevant to the case (at 51). The proposition that there is a broad prerogative power to expel or detain in times of peace is not good law in Australia (see Lim at 19).

29This survey amply supports, in my view, the conclusion that it is, at best, doubtful that the asserted prerogative continues to exist at common law: See Harry Street & Rodney Brazier, Constitutional and Administrative Law (5th Ed) (1985) at 149-50. The affirmative conclusion that the prerogative no longer exists may well be justified, but I do not find it necessary to express a concluded view on that matter. I proceed, however, to a discussion about the displacement of a prerogative power of this nature on the footing that its existence is entirely uncertain, and that there are no previous modern instances of its exercise.

Section 61

30If it be accepted that the asserted executive power to exclude aliens in time of peace is at best doubtful at common law, the question arises whether s 61 of the Constitution provides some larger source of such a power. It would be a very strange circumstance if the at best doubtful and historically long-unused power to exclude or expel should emerge in a strong modern form from s 61 of the Constitution by virtue of general conceptions of ‘the national interest’. This is all the more so when according to English constitutional theory new prerogative powers cannot be created: see generally Winterton, Parliament, the Executive, and the Governor General (Melbourne University Press, 1983) at 120 and British Broadcasting Corporation v Jones [1965] Ch 32 in which Diplock LJ said (at 79): “[I]t is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative”.

31The Australian cases in which the executive power has had an “interest of the nation” ingredient can be contrasted with those in which such a power has been asserted for coercive purposes. Thus, this executive power has been validly used to set up the Australian Bicentennial Authority (Davis v The Commonwealth (1988) 166 CLR 79) and the CSIRO, but has been held not to be available to sustain deportation (Ex parte Walsh & Johnson; Re Yates (1925) 37 CLR 36 at 79); detention or extradition of a fugitive (Barton at 477, 483, 494); the arrest of a person believed to have committed a felony abroad (Brown); the arbitrary denial of mail and telephone services (Bradley v Commonwealth (1973) 128 CLR 557); or compulsion to attend to give evidence or to produce documents in an inquiry (McGuiness v Attorney-General (Vic) (1940) 83 CLR 73): See generally P H Lane, Lane’s Commentary on the Australian Constitution (2nd ed, 1997) at 439.

32It is against this background that I now turn to consider the argument that if there is any prerogative or other non-statutory executive power, it has been abrogated by the Parliament through the enactment of the Migration Act 1958 (Cth) (“the Act”), as amended from time to time.

Relationship between statute and prerogative

33It is uncontentious that the relationship between a statute and the prerogative is that where a statute, expressly or by necessary implication, purports to regulate wholly the area of a particular prerogative power or right, the exercise of the power or right is governed by the provisions of the statute, which are to prevail in that respect: Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508 (“De Keyser’s”). The principle is one of parliamentary sovereignty.

34The question is, what is the test to determine whether a prerogative power has been displaced by statute? The accepted test is whether the legislation has the same area of operation as the prerogative. In De Keyser’s, Lord Dunedin said (at 526):

“It is equally certain that if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules. On this point I think the observation of the learned Master of the Rolls is unanswerable. He says: ‘What use would there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on prerogative?’”

Lord Moulton said (at 554):

“the statutory powers … are wider and more comprehensive than those of the prerogative itself. [The Parliament] has indicated unmistakably that it is the intention of the nation that the powers of the Crown in these respects should be exercised in the equitable manner set forth in the statute.”

Lord Sumner said (at 561):

“It seems also to be obvious that enactments may [abrogate the prerogative], provided they directly deal with the subject-matter, even though they enact a modus operandi for securing the desired result, which is not the same as that of the prerogative.”

Lord Parmoor said (at 576):

“[w]here a matter has been directly regulated by statute there is a necessary implication that the statutory regulation must be obeyed, and that as far as such regulation is inconsistent with the claim of a Royal Prerogative right, such right can no longer be enforced.”

See also per Lord Atkinson (at 538).

35In Laker Airways Ltd v Department of Trade [1977] 1 QB 643, the House of Lords held that there was no residual prerogative right to withdraw the designation of an airline, Skytrain, under an international airline treaty between England and the United States (the Bermuda Agreement), where the airline had been duly licensed under a domestic statute regulating civil aviation. On the question of construing the scope of the domestic statute, Roskill LJ said (at 722):

“I do not think that the Attorney-General’s argument that the prerogative power and the power under municipal law can march side by side, each operating in its own field, is right. The two powers are inextricably interwoven. Where a right to fly is granted by the Authority under the statute by the grant of an air transport licence which has not been lawfully revoked and cannot be lawfully revoked in the manner thus far contemplated by the Secretary of State, I do not see why we should hold that Parliament in 1971 must be taken to have intended that a prerogative power to achieve what is in effect the same result as lawful revocation would achieve, should have survived the passing of the statute unfettered so as to enable the Crown to achieve by what I have called the back door that which cannot lawfully be achieve by entry through the front. I think Parliament must be taken to have intended to fetter the prerogative of the Crown in this relevant respect.”

Lord Denning MR said (at 706-707):

“Seeing then that … statutory means were available for stopping Skytrain if there was a proper case for it, the question is whether the Secretary of State can stop it by other means. Can he do it by withdrawing the designation? Can he do indirectly what he cannot do directly? Can he displace the statute by invoking a prerogative? If he could do this, it would mean that, by a side wind, Laker Airways Ltd would be deprived of the protection which the statute affords them … [T]he Secretary of State was mistaken in thinking that he could do it.”

See also Lawton LJ (at 728) and Mocatta J at first instance (at 678) to the same effect.

36In Hunkin v Siebert (1934) 51 CLR 538, the Commonwealth suspended an employee without pay, prior to dismissing him. It was conceded that the employee was not suspended under or in accordance with the disciplinary procedures (including suspension) provided for under the Public Service Act 1916 (Cth). The Commonwealth argued that, as another section of the Public Service Act reserved the Crown’s common law power to dismiss a public servant, and the right of suspension was an incident of that power, there existed outside the statute, alternative common law mode of dealing with the employee. The Court ruled that the express power of suspension “necessarily regulates and controls any prerogative power of the Crown to suspend” (Starke J at 544). Rich, Dixon and McTiernan JJ said (at 542) that “such provisions must be interpreted as restricting the common law right of the Crown to exercise a similar power by other means and in other circumstances.”

37These cases show that, where the prerogative is relied on as an alternative source of power to action under a statute, the prerogative will be held to be displaced when the statute covers the subject matter: See further John Goldring “The Impact of Statutes on the Royal Prerogative; Australasian Attitudes as to the Rule in Attorney-General v De Keyser’s Royal Hotel Ltd” (1974) 48 Australian Law Journal 434.

38Reliance was placed on Barton to show that the courts must be slow to find a statutory intention to abrogate a prerogative power. But in Barton the High Court held that the Extradition (Foreign States) Act 1966 (Cth)simply did not apply to the Executive’s request of Brazil to detain the applicants, pending a request for extradition to Australia. Barwick CJ (at 488) Mason J (at 499-500) and Jacobs J (at 507) did so on the basis that there was no extradition treaty in place between Brazil and Australia. McTiernan and Menzies JJ, in their joint judgment, confined themselves to considering whether the Act prevented the Attorney-General from making a request to detain, pending a request for extradition (at 489, 491). The obiter observations in that case to the effect that s 21 of the Extradition (Foreign States) Act entirely displaced the prerogative power to make a requisition of a foreign state in circumstances where the Act applied are telling: see 487-8 per Barwick CJ; 501 per Mason J; and 508 per Jacobs J; McTiernan and Menzies JJ expressed no view. Thus, Barton ought not be considered authority for the proposition that an executive power, apart from statute, can coexist with a statute that applies in the same area. On the contrary, the Court appears to have made decision squarely on the basis of the limited area of operation of the Extradition (Foreign States) Act, and the consequential absence of any inconsistency between the exercise of the prerogative power and the provisions of the statute. So much is clear from the reasons for judgment of Mason J (at 501):

“Here, not only is there a conspicuous absence of express words, but the area of operation of the statute, limited as it is to extradition pursuant to treaty, does not extend to the whole of the area covered by the exercise of the prerogative or executive power; moreover, there is no inconsistency between the provisions of the statute and the exercise of that power so far as it relates to the extradition of fugitive offenders from foreign states which are not party to an extradition treaty with Australia.” [emphasis added]

39The Court was also referred to the recent decision of Lindgren J in Oates v Attorney-General (Cth) (2001) 181 ALR 559 where his Honour held that s 40 of the Extradition Act1988 (Cth) does not displace the prerogative power to request a state to extradite a person to Australia (at 571). Lindgren J was, however, careful to distinguish the obiter in Barton referred to earlier on the basis that s 40 of the Extradition Act does not purport to provide the foundation for the Attorney-General’s authority, and takes its place in a statute predominantly concerned with extradition from Australia rather than to Australia.

40Finally, it is necessary to consider the clarity with which an intention to displace a prerogative or executive power needs to be expressed. It can readily be conceded that if a power is well used, well-established and important to the functioning of the executive government, a very clear manifestation of an intention to abrogate will be required. But, similarly, where an asserted power is at best doubtful, and where, if it exists at all, it does so in a field that has been the concern of the Parliament for a very long time, a less stringent view of the intention necessary to abrogate such a power is appropriate. Another such indication may be where the Parliament has entered a field in which Australia has assumed treaty obligations and has acted to give effect to those obligations in that field and where the asserted prerogative or executive power might be capable of exercise in a manner not conformable with the Parliament’s provision for the satisfaction of those obligations.

41I now turn to consider the relevant provisions of the Act to determine whether, if there is any executive or prerogative power deriving from a source other than statute, it was the intention of the Parliament that the Act should exclude it. I do so in the light of the overview of the legislation given by French J in his reasons for judgment.

Migration Act 1958 (Cth)

42The long title of the Act reads: “an Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons”. As well as having an informative long title, this Act contains an express statement of its object. This is provided for by s 4(1):

(1)the object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

43Subsections (2), (3) and (4) then outline the Parliament’s conception that the various mechanisms provided for in the Act – visas, self-identification, removal and deportation – are to advance the object of the Act stated in subsection (1).

44The reference in the stated object to “the national interest” is important and is suggestive of a recognition by the Parliament of its unquestioned power to determine comprehensively what the national interest shall be in this respect. An object so defined tends to point against an intention that there should be some residual executive power to determine, outside the statute, and in relation to the removal and deportation of persons whose presence in Australia is not permitted by the Act, what the national interest requires in any particular case. It is also, I think, relevant to point out that in this context the national interest, as contemplated by the provisions of the Act, includes recognition of Australia’s protection obligations under the Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees (“Refugee Convention”), matters as to which the Act makes elaborate provision.

45The ordinary meaning of “Australia” in a statute extends to the external territories and the territorial seas (Acts Interpretation Act 1901 (Cth), s 15B). But it was said at one point in argument that the object of the Act was to prescribe a regime of lesser geographic scope. Section 5 of the Act contains definition provisions that do reveal a more limited conception of “Australia”. There are, however, others in which “Australia” is used in its normal wide meaning. For example, “remove” is defined in s 5(1) as meaning “remove from Australia”. Sections 189(2), 228(A), 230(1A), and 249 provide other examples. In any event, if there were any doubt, it is expressly removed by s 6:

To avoid doubt, although subsection 5(1) limits, for the purposes of this Act, the meanings of "enter Australia", "leave Australia" and "remain in Australia" and as well, because of section 18A of the Acts Interpretation Act 1901, the meaning of parts of speech and grammatical forms of those phrases, this does not mean:

(a) that, for those purposes, the meaning of "in Australia", "to Australia" or any other phrase is limited; or

(b) that this Act does not extend to parts of Australia outside the migration zone; or

(c)that this Act does not apply to persons in those parts.

46The respondents also point to s 189(2), which provides for the detention of unlawful non-citizens who are outside migration zone. That sub-section reads:

If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a) is seeking to enter the migration zone; and

(b) would, if in the migration zone, be an unlawful non‑citizen;

the officer must detain the person

47It should also be noted that s 7 has the effect that the Act is expressly extended to the territory of Christmas Island.

Border Protection Legislation Amendment Act 1999 (CTh)

48If there were any doubt about the geographic reach of the Act and its scope in relation to Australia’s borders, it was removed by the amendments introduced by the Border Protection Legislation Amendment Act 1999 (Cth) (“Amendment Act”). The long title of the Amendment Act reads ‘An Act to provide enhanced protection for Australia's borders, and for related purposes’. It amended the Act in three broad areas.

49The first area of amendment concerned Division 12 – Offences in relation to entry into, and remaining in, Australia. That Division creates offences with respect to the entry of non-citizens into Australia (ss 229, 230, 232, 232A and 233) and provides for penalties. The new s 228A provides that Division 12 applies both in and outside Australia. There is also a new s 230(1A), which makes it clear that a person may be guilty of an offence under that section when outside the migration zone.

50A second area of amendment was directed to Division 13. That Division confers powers to enter and search vessels (s 251), search and detain suspected offenders (s 252), and prevent unlawful non-citizens from leaving a vessel (s 249). The amended s 251 enables an officer (as defined in s 5) to board and search a vessel at any time if section 245F does not apply to the vessel (as to which see below) and the officer reasonably suspects that there is on board the vessel “a person seeking to enter the migration zone who would, if in the migration zone, be an unlawful non-citizen.” The officer may stop the vessel (s 251(7)) and, where the officer has a search warrant, may seize any document relating to entry into Australia of a person who would have become an unlawful non-citizen (s 251(6)(c)(iv)). An officer may use such reasonable force as is necessary for the exercise of these powers.

51Section 249(1AA) also provides that an officer may prevent a person from leaving a vessel on which the person has arrived in Australia if the officer reasonably suspects that the person is intending to enter the migration zone and would, if in the migration zone, be an unlawful non-citizen. This power continues once the vessel comes within the migration zone (s 249(1)(a)).

52Further, s 250 provides that the requirement contained in s 189 that an officer have a suspicion that a person is or would be an unlawful non-citizen is automatically met where “suspects” are concerned. “Suspects” are defined in s 250 as non-citizens who travelled to or are brought to the migration zone, and are believed by an authorised officer on reasonable grounds to have been on board a vessel when it was used in connection with the commission of an offence against a law in force in Australia. Such an offence includes the offences set out in Division 12.

53It is important to observe that the powers in Division 13 are regulated. For example, section 252(7) provides that no civil suit shall lie against any person who is requested by an authorised officer to perform a search under s 252 but with the notable qualification that the search is to be performed in good faith and not in breach of subsection (8). Subsection 8 provides that the person performing the search shall not use more force, or subject the person to a greater indignity, than is reasonably necessary to conduct the search. It is also important to note the Division applies to the territorial waters by virtue of s 6.

55Under the new Division 12A, the commander of a Commonwealth ship (defined in s 245A) may request the master of a foreign ship within Australian waters to permit the officer to board the ship (s 245B); and if that request is not complied with by a foreign ship, to chase the ship even if the ship is out of sight (s 245C), and to use any reasonable means consistent with international law to enable the boarding of the chased ship, including using “necessary and reasonable force” and, where necessary, firing at or into the chased ship (s 245C). The express conferral of the authority to fire at, and even into, the chased ship emphasises the powerful scope and content of the Act.

56Section 245C(3) enables these powers to be applied to a foreign ship on the high seas where no request under s 245B has been made. Section 245D establishes a similar regime with respect to Australian ships.

57Section 245F confers on officers the power to board ships. Section 245F(1)(a) provides:

This section applies to a ship that is outside the territorial sea of a foreign country if:

(a)a request to board the ship has been made under section 245B;

(b)the ship is a foreign ship described in subsection 245C(3) (which allows foreign ships on the high seas to be chased); or

(c)the ship is an Australian ship.

58For the purposes of this section, ‘officer’ is defined by s 5 but also includes any person who is in command of the Commonwealth ship, or is a member of the crew, or is a member of the Australian Defence Force (s 245F(18)). He or she may not only board a ship, but may also search and take copies of any document, and interrogate persons aboard. Such a person may make arrests without warrant if (amongst other things) he or she suspects that a person has committed an offence against the Act (s 245F(3)(f)). In doing so, such force is as is necessary and reasonable in the exercise of a power under this section may be used (s 245F(12) and (13)). The officer may then detain the ship and “bring it, or cause it to be brought, to a port or other place that he or she considers appropriate” if the officer reasonably suspects that the ship is or has been involved in a contravention of the Act, either in or outside Australia (s 245F(8)). Importantly for present purposes, the officer may also detain any person who is found on the ship and bring the person, or cause the person to be brought, to the migration zone (s 245F(9)).

59An officer may also, upon direction from the Secretary, move and/or destroy certain ships where the officer reasonably suspects that the ship is, or has been, involved in a contravention of the Act: s 245H. The provision applies to Australian and foreign ships, and to ships that are in Australian territory, and to ships outside Australia that have been detained under s 245F(8). ‘Officer’ for the purposes of this section is an officer as defined in s 5.

60Taken together these provisions provide a comprehensive regime for the control of Australia’s borders and the patrol of the territorial waters in the circumstances such as those that the rescued people were in at the relevant time. The regime could have applied to the rescued people, and as Mr Farmer acknowledged in his evidence, had the government “not taken a view” that it did not wish to apply the Act, it would have done so (V899/2001, V900/2001, Transcript of Hearing, 2 September 2001, page 170-1). This regime extends to the territorial waters and to the high seas. It regulates the right to detain, and creates offences.

61As I have endeavoured to show, once a particular statutory regime is in place, there can be no parallel executive right in the area expressly covered. In the scheme of the Act that I have outlined, this means that if a migration officer forms a view under s 189, the regime of detention and bringing to the migration zone provided for by s 189 has to take effect, with various consequences, both detrimental and beneficial to a person affected. Beneficial, in that if the detainee has a claim for refugee status a range of rights derive from Australia’s domestic conferral of rights pursuant to the Refugee Convention, detrimental because the detainee’s ‘freedom’ to continue an illegal journey to Australia is curtailed by lawful detention, followed no doubt by deportation. It would be a strange intention to impute to the Parliament that a parallel system of unregulated executive discretion should be available, or not available, according to whether an officer for the purposes of s 189(2) happened to be on board, for example, a Commonwealth vessel tasked for border protection.

62Finally, that the Act, as amended by the Amendment Act, was intended to be wide in scope and powerful in its means to achieve its object, is confirmed in the Second Reading Speech of the Hon Philip Ruddock, Minister for Immigration and Multicultural Affairs, in which he said:

The bill that I now place before the chamber is part of the package of measures announced by the Prime Minister on 27 June 1999 in response to a massive increase in the numbers of attempts at illegal entry to Australia.

The bill is part of the government's ongoing commitment to combat the flow of unauthorised arrivals and other breaches of our laws at our borders.

The changes the bill proposes will strengthen legislative provisions relating to the prevention of the smuggling of people into Australia.

These changes will maintain the integrity of Australia's borders against attempted intrusions of the criminal elements behind most people smuggling activities

There is, however, another side to the mass movement of people. This is the cynical worldwide trade in smuggling people from one country to another

These criminals [people smugglers] can also deal in large numbers of people. Earlier this year a ship was organised which was to leave Kenya with around 2,000 people of Somali descent on board. These people were all on their way to Australia.

It is a trade that needs to be dealt with before more lives are put at risk.

The people being smuggled are, in most cases, not genuine refugees seeking haven in the first available safe country. They are instead young migrants from less developed countries who are seeking to work in developed countries.

Australia is increasingly a preferred destination and unwilling recipient of the attention of these people.

The first of the influx of Chinese boats arrived in December last year, travelling at the conclusion of the monsoon season in the Northern Hemisphere.

A total of 471 Chinese nationals arrived, most targeting our eastern coastline.

The bill will create new powers that will allow our officers to undertake enforcement action beyond our territorial waters, and to arrest and prosecute those involved in attempts to breach our sovereignty in this way.

The bill ensures that the investigatory and enforcement powers held by officers of front-line border agencies are complementary so they may function more effectively and efficiently on behalf of Australia.

64This review of the Act shows that it provides for a very comprehensive regime relating to – in the words of the long title – “the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens.” By virtue of the Amendment Act that regime specifically extends to protection of Australia’s sea borders. The regime is comprehensive in its coverage of powers of apprehension and detention. No doubt gaps can be found in the scheme, but the existence of these does not detract from the comprehensive character of the statutory regime. The conclusion to be drawn is that the Parliament intended that in the field of exclusion, entry and expulsion of aliens the Act should operate to the exclusion of any executive power derived otherwise than from powers conferred by the Parliament. This conclusion is all the more readily drawn having regard to what I have concluded about the nature and the uncertainty of the prerogative or executive power asserted on behalf of the Commonwealth.

DETENTION

65Because I have concluded that there is no non-statutory executive or prerogative authority for the detention of those rescued, and because no source of statutory authority is put forward by the appellants as justifying any such detention, it is now necessary to consider the alternative arguments that no order for release should have been made.

66As the trial judge noted, the appellants did not contest that the Federal Court of Australia has jurisdiction in this case to make an order in the nature of habeas corpus. Nor did they contest that the Victoria Council for Civil Liberties Incorporated and Mr Vadarlis have standing in the circumstances to bring an application seeking the release of those rescued. As North J observed, in this they were correct: see Waters v Commonwealth of Australia (1951) 82 CLR 188 at 190; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 per Gleeson CJ and McHugh J at 600, Gummow J at 627 and Kirby J at 652-3; and Clarkson v R [1986] VR 464 at 465-6.

67The first argument advanced by the Solicitor-General about detention was that those rescued by the MV Tampa were not detained by the Commonwealth or by any of the other appellants. Such restraint as they were subjected to, he submitted, was not a total restraint of movement and a partial restraint was to be distinguished from detention. All that had occurred was that the rescued people had been prevented from going to their preferred place of destination, but they were free to proceed to any other destination. In these circumstances there was no detention such as to provide a foundation for the issue of a writ of habeas corpus.

68In support of this argument the well-known cases of Bird v Jones (1845) 7 QB 742 and Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 were referred to. In relying upon those cases it was not, as I understood the argument, suggested that detention for present purposes need be detention in a confined space. As the Solicitor-General agreed, a person might unlawfully be detained within a football field. Rather, the point made was that if the person can leave the place of supposed detention, even though not by way of the preferred means of egress, or not to the preferred destination, there is no detention.

69When this question arises in the context of habeas corpus, however, it may well require a different answer than when it arises in other contexts, such as false imprisonment. It is clear from the authorities that, unlike an action for false imprisonment, it is not necessary to show actual detention and complete loss of freedom to found the issue of a writ of habeas corpus. Rather, custody or control are the requisite elements: R v Secretary of State for Home Affairs; Ex Parte O’Brien [1923] 2 KB 361, at 398 per Atkin LJ and at 381 per Bankes LJ. As Clark and McCoy put it, ‘Control is the hypotenuse between the applicant and the respondent under the remedy’: The Most Fundamental Legal Right: Habeas Corpus in the Commonwealth (Clarendon Press, Oxford, 2000) at 200, and the applicant must be subject to restrictions not shared by the public generally: see Eatts v Dawson (1990) 21 FCR 166 at 176 relying on Jones v Cunningham 371 US 236 (1963).

70It is important, too, that a distinction is drawn between the elements of the remedy of habeas corpus and those of false imprisonment. The first is based on an action for release in order to be brought before the court; the second is a tort involving the notion of fault and the attribution of liability: Clark and McCoy, The Most Fundamental Legal Right (2000) at 198-9. For this reason, the authorities relied upon by the Commonwealth must be approached with great caution as they are cases with respect to false imprisonment, not habeas corpus: see Bird v Jones (1845) 7 QB 742; Balmain New Ferry Company Ltd v Robertson (1906) 4 CLR 379; Herd v Weardale Steel, Cole and Coke Company Ltd and Ors [1915] AC 67; Burns v Johnston [1916] 2 KB 444.

71Habeas corpus is a remedy directed to the relief of a person’s detention without lawful authority, at a particular place and time. This is illustrated by the decision of the Supreme Court of New South Wales in Lo Pak (1888) 9 NSWR 221 to which I have already referred in connection with the prerogative. It will be recalled that in that case the applicant, a Chinese subject with a right to resume residence in Australia, returned to New South Wales in company with other Chinese people on board a vessel from which, by Government order, they were prevented from disembarking. On the return of the order nisi for habeas corpusone of the arguments was that the applicant was not in custody, and not imprisoned, because the ship could go where it liked and the applicant with it. But of this argument Windeyer J said (at 247-8):

“It is idle to urge that, because this ship can go anywhere the captain likes to take it, and because the applicant is free to go wherever the ship goes, that he is not imprisoned. What answer is that to this application? Compelling him to stay on board the ship is exactly what the applicant complains of as an illegal restraint upon his liberty.”

72Foster J was of a similar opinion; he concluded his judgment with the following

(at 249-250):

“I think, therefore, that no case has been made out justifying [the police inspector] in restraining the liberty of these men; that he does restrain them there can be no doubt, for it was held in R v Macquarie and Budge 13 S.C.R. 264 that sending [a] steamer out with a passenger alone on board was an imprisonment of that person, the person not being able to manage the steamer, or to leave her without going into the water, and if these Chinamen are prevented from leaving the steamer and going where they please, that is a sufficient restraint of liberty, and entitles them to a habeas corpus.”

73The same situation arises here. The question should not be, ‘Would the person be free if they went somewhere else?” but rather “Is the person detained here and now?”. If so, prima facie, the detention is unlawful unless legally justified: Liversidge v Anderson [1942] AC 206 at 245. The same argument was considered by the European Court of Human Rights in Amuur v France (1992) 22 EHRR 533, which concerned the confinement for twenty days of four Somali asylum seekers in the transit zone of Paris-Orly airport. In rejecting the argument that there was no detention because the asylum seekers could have removed themselves from the situation by returning to Syria from where they had arrived, the Court said at 558:

“The mere fact that it is possible for asylum seekers to leave voluntarily the country where they wish to take refuge cannot exclude a restriction on liberty…Furthermore, this possibility becomes theoretical if no other country offering protection comparable to the protection they expect to find in the country where they are seeking asylum is inclined or prepared to take them in.”

74To my mind, the fact that in Lo Pak the detainees had a right to enter the colony of New South Wales and in the present case those rescued have no such right is not a relevant point of distinction. A similar question arose in Chin Yow v United States of America 208 US 8 (1908) which concerned the detention by the United States Government of a Chinese man on a vessel in San Francisco harbour who, while claiming to have been born in, and to be a resident of, San Francisco, was held by the Commissioner of Immigration at San Francisco not to have a right to land. The Supreme Court addressed the argument that because the man had no right to enter, the Government was doing no more than stopping him entering and that this could not amount to detention. The Court held that the question whether the detainee had a right to enter was not relevant to whether he was wrongly imprisoned, and that to determine that question the facts of the case had to be examined. The Court held that he was imprisoned.

75As in Chin Yow, so too here, the fact that the rescued people did not have any ‘right’ to enter Australian waters does not answer the question whether they have been detained. Nor does it deprive them of the ability to seek redress from this Court by way of habeas corpus. As Brennan, Deane and Dawson JJ said in Lim at 19, citing, amongst other cases, Lo Pak and Kioa v West (1985) 159 CLR 550 at 631:

“Under the common law of Australia … an alien who is within this country, whether lawfully or unlawfully, is not an outlaw. Neither public official nor private person can lawfully detain him or her or deal with his or her property except under and in accordance with some positive authority conferred by the law.” (Emphasis added, citations omitted)

“There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection. This principle has been in the law at least since Lord Mansfield freed “the black” in Sommersett’s case …”

77It is, therefore, important to focus not on the lack of any right of the rescued people to enter Australia, but on whether the rescued people were, in a real and practical sense, detained by the Commonwealth.

78In his reasons for judgment North J pointed to a number of factors that led to his conclusion at [81] that the appellants ‘were committed to retaining control of the fate of the rescuees in all respects’: see [77 - 81].

79The appellants challenged some of the findings that led his Honour to this conclusion and pointed to what they said were, in any event, three means of egress that were open to the rescued people: to leave with anybody who was prepared to take them from the MV Tampa, to leave on the MV Tampa, and to leave pursuant to the Nauru/NZ arrangements. It is accepted by the appellants that it is no answer to a writ of habeas corpus to say that there is a means of escape if that means of escape is not reasonable: Burton v Davies and General Accident Fire and Life Assurance Corporation Ltd [1953] StRQd 26 at 30. The question therefore is whether there were reasonable means of egress open to the rescued people such that detention should not be held to exist.

80Putting to one side for the moment the rescued peoples’ opportunity to leave the MV Tampa pursuant to what the trial judge called the Nauru/New Zealand arrangements, the conclusion is inevitable that, viewed as a practical, realistic matter, the rescued people were unable to leave the ship that rescued them on the high seas when the wooden fishing boat in which they were travelling began to sink. The agreed statement of facts makes this clear. At the relevant time, the MV Tampa was four nautical miles from Christmas Island and it is not suggested that it was practicable for any of the rescued people to leave the ship otherwise than by another ship or boat. As the agreed statement of facts says, the movements of those rescued on the ship were controlled by officers of the Special Armed Services of the Australian Defence Force and the rescued people were not allowed to leave the ship except to leave Australian territorial waters. No other vessels were permitted to approach the ship without the authorisation of the Commonwealth, which would not be given unless it was for the purpose of moving the rescued people out of Australian territorial waters and then subject to safety considerations and satisfaction of a bona fide intention not to move the people to Australia. It was an agreed fact that the rescued people had no access to communication with persons off the MV Tampa and that persons off the ship were unable to communicate with them.

81The trial judge found, and I see no reason to doubt his finding, that the chances of any offer being made to take the rescued people off the ship were limited because the number of people on the ship was so large. There was no evidence that anyone had come forward with such an offer. To be effective any such offer would have had to involve a destination other than Christmas Island or the Australian mainland, and therefore a sea voyage of some considerable duration.

82North J also concluded that it was not reasonable to expect, nor was it a practical possibility, that the rescued people could leave on the MV Tampa. In reaching this conclusion the judge said that it was an agreed fact that the captain would not sail out of Australian waters while the rescued people were on board. The appellants argued that the agreed facts did not go this far and this may be literally true; but the agreed fact about the view held by the captain was so close to this as a matter of substance that nothing turns on that discrepancy, if indeed there is one.

83The appellants contended that there was no detention by them because the captain of the MV Tampa was free to leave and that his refusal to leave could not be attributed to the appellants. It was also argued that the trial judge erred in finding as a fact that the captain would not under any circumstances sail out of Australian waters while the rescued people were on board. The trial judge did not use the expression “under any circumstances” but treated it as a matter of agreed fact that the captain would not sail out of Australian waters whilst the rescued people were on board. This does not seem to me to be inconsistent with the agreed fact about the view held by the captain. In any event, it is hard to see how in a practical sense Captain Rinnan was free to leave. He had 433 people on the deck of his container ship when that ship was licensed to carry only 50, and the people were apparently taking shelter in empty cargo containers. There was evidence about the Captain’s concerns about the dangers of a voyage across the open seas with these people on board. Although, as I understood the argument, it was accepted that safety considerations might well have operated to keep the vessel in Australian waters for the time being, it was suggested that solutions could have then been found and that the judge should have so held. But even if it be accepted that, sooner or later, solutions would have been found, that does not answer the practical position as it existed at the relevant time. In my view it was open to the trial judge to find that this option did not offer a reasonable or practical means of egress for the rescued people.

84Finally, there is the question whether the Nauru/New Zealand arrangements constituted a reasonable means of escape. The appellants challenged the finding of the trial judge that the communication to the rescued people of the Nauru/New Zealand arrangements was ‘apparently not in their native language’. The correct conclusion is, I think, that there was no evidence either way; indeed the trial judge mentioned this at [78]. But nothing turns on the point, and even if it be accepted that the communication was understood by the rescued people on the ship, that does not detract from the conclusion that the Nauru/New Zealand arrangement was merely a continuation of control or custody by the appellants in another form. The fact the appellants proposed to move the rescued people to another location does not lead to the conclusion that the detention was at an end. In my view it was open to the trial judge to find, at [81], with respect to the Nauru/New Zealand arrangement, that:

“Where complete control over people and their destiny is exercised by others it cannot be said that the opportunity offered by those others is a reasonable escape from the custody in which they were held. The custody simply continues in the form chosen by those detaining the people restrained.”

85It is also necessary to consider the general contention that the people who were rescued were not detained by any act of the Commonwealth or the other appellants. The answer to this submission is that the Commonwealth acted within a factual framework that involved the known intention of the captain of the MV Tampa to proceed to Christmas Island (Agreed Fact 17) and his view that he would not take his ship out of Australian waters while the rescued people were on board. The trial judge’s findings of fact that the appellants were committed to retaining control of the fate of the rescuees in all respects, and that the appellants took to themselves “complete control over the bodies and destinies of the rescuees”, (at [81]) were made in the context of these earlier findings. To take a practical example on different facts, the circumstance that a person has decided to shut the door of a room, and to keep it shut, can surely provide no answer to a claim against another person who, knowing of those facts, then closes the only other door with its consequence that the people inside cannot get out.

86I agree that the learned judge was probably incorrect when he found that the Commonwealth had prevented, rather than merely failed to facilitate, communication with the rescued people. The agreed fact was however that the rescued people had no access to communications and, viewed, in the broader context, if the learned judge was in error in this respect, it is an error that does not have a significant bearing on the correctness of his overall conclusions about detention.

87I see it as irrelevant that individual acts that brought about the detention may well have been authorised by law. The submissions on appeal did not address the circumstances under which Flying Fish Cove was closed but I do not see what difference it makes if, as I would be prepared to assume, that closure was lawful. It is easy to imagine how a series of individually lawful acts could bring about a detention that was not justified by law. In the end, the focus must be upon the ultimate consequences, for the freedom of an individual, of the act or series of acts by which detention is brought about.

88The appellants then argued that the situation of the rescued people was “self-inflicted”. Like the trial judge, I do not find that a helpful concept. As discussed earlier, notions of fault and defences such as volenti non-fit injuria, which are significant in tort law,have no place in the law with respect to habeas corpus. In any event, I agree with the trial judge that the situation of the rescued people cannot be said to be self-inflicted. They could not have anticipated the situation in which they found themselves.

89I also reject the argument of the appellants that those bringing the applications on behalf of the rescued people were doing so for an impermissible collateral purpose. The first respondents’ purpose was to obtain the release of the rescued people from unlawful detention. It is true that the consequence of that would seem inevitably to be that the rescued people would be placed in immigration detention because of the mandatory provisions of the Act, in particular s 189. But, both conceptually and on the authorities, it can be no bar to habeas corpus, directed as it is to unlawful detention, that the issuing of the writ may lead to another form of detention that is lawful: in In Re Gregory (1899) 25 VLR 539; Re Esperalta [1987] VR 236. Further, the fact that lawful detention would be accompanied by other rights seems to me to provide no basis for saying that an action to end unlawful detention would be in some way tainted. If this area of discourse is illuminated by the fundamental notion that habeas corpus provides a remedy for what is unlawful, in vindication of the principle of lawfulness, then such a proposition must fail.

remedy

90It follows that I would not disturb the trial judge’s finding that the persons rescued by the MV Tampa were detained by the appellants and that their detention was not authorised by law.

91This conclusion brings me to the final question on the appeals, which is whether the order made went beyond that which was legally justified. It is clear that there is no discretion to refuse relief once the grounds for the issue of the writ of habeas corpus have been made out, and the appellants did not submit otherwise: see Somerset v Stewart (1772) 98 ER 499; R v Langdon; Ex parte Langdon (1953) 88 CLR 158 per Taylor J. The question is, therefore, whether in fashioning the order he made to meet the circumstances of the case the trial judge was in some way in error.

92As is clear from his reasons, North J made the orders in the terms he did because, at the time, the people concerned were aboard a ship at sea and his Honour considered that the remedy could only be made effective in a practical sense by an order obliging their release on mainland Australia. If the remedy was to be effective it is difficult to see what other order the judge could, in the circumstances, have made. It should also be borne in mind that historically the remedy operated to compel the production of a person before the court. The order made by the trial judge has not been shown to have gone beyond that which was legally justified.

93It follows that I would dismiss the appeals.

THE CROSS-APPEAL

94As to the Cross-Appeal, I agree with what French J has said. Difficult and important questions might in other circumstances have required close attention but for the reasons given by French J the cross-appeal should be dismissed.

I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.

BEAUMONT J:

95The facts and context in this appeal are explained by French J. I agree with French J, for the reasons he gives, that the appeal should be allowed. I agree also with the orders proposed by French J. I wish to add some further reasons for rejecting the principal claim upheld by the primary Judge.

The grounds of the claim at first instance

96The grounds stated in the second amended application, dated 4 September 2001, to the primary Judge for final relief in the form of writs of mandamus, injunction and habeas corpus and declaratory relief in the case of Mr Vadarlis (and in substance likewise in the case of the Victorian Council for Civil Liberties Inc (“VCCL”) are as follows:

·The “Tampa occupants” (“the occupants”) were “detained” upon MV Tampa by the respondents to the proceedings, viz, the Minister for Immigration and Multicultural Affairs (“the Minister”), the Commonwealth of Australia (“the Commonwealth”), and the Secretary of the Department of Immigration and Multicultural Affairs (“the Secretary”), and “prohibited from leaving the vessel to land on Australian soil for any purpose whatsoever”.

·If the detention was not “immigration detention” (presumably pursuant to the powers and duties conferred and imposed upon Commonwealth officers by the provisions of Part 2 of the Migration Act 1958 (Cth) (“the Act”) (see below)), it was otherwise unlawful.

·The Minister and the Secretary were responsible for the immigration detention of the occupants.

·The Minister and the Secretary were under a duty under s 256 of the Act to give the occupants visa application forms, to provide all reasonable facilities for obtaining legal advice and for taking legal proceedings in relation to their immigration detention. (Section 256 provides that a person in immigration detention may have access to certain advice, facilities, etc.)

·By their conduct in seeking to enter Australian waters and to land at Christmas Island and in attempting to insist that the MV Tampa not return them to Indonesia, but take them to Christmas Island, the occupants made implicit requests to apply for visas and to be given access for visas and to be given access to legal advice and/or to take legal proceedings.

·Alternatively, the occupants had made a request to the Minister, the Commonwealth and the Secretary for political asylum.

·The Minister and the Secretary had acted in breach of their statutory duties by directions given to officers of the SAS, other Commonwealth officers and the MV Tampa’s master and crew who, contrary to s 256 of the Act, refused the occupants access to facilities, so as the enable them to make valid applications for visas under s 45 of the Act, which applications the Minister had a duty to consider under s 47 of the Act. (Section 45 provides that, subject to the Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class. Section 47(1) provides that the Minister is to consider a valid application for a visa.)

·Alternatively, the Minister and the Secretary and Department of Immigration and Multicultural Affairs’ (“DIMA”) officers suspected that each occupant was seeking to enter the “migration zone” and would, if in that zone, be an unlawful citizen, so that pursuant to the Act, particularly s 189(2) and s 196, the Minister and the Secretary were obliged to detain the occupants, or cause them to be detained and kept in immigration detention. Alternatively, the Secretary was so obliged. (Section 189(2) provides that if an “officer” reasonably suspects that a person in “Australia” (which includes Australia’s territorial (coastal) sea and the territorial sea adjacent to an external territory: s 15B, Acts Interpretation Act 1901 (Cth)), but outside the migration zone (which includes (by s 5(1)) “land that is part of a State or Territory at mean low water mark” (emphasis added)) is seeking to enter the zone, and would, if in the zone, be an “unlawful non-citizen”, the officer must detain the person. Section 196 provides that an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is removed from Australia under s 198 or s 199, or deported under s 200 or granted a visa.)

·The Minister, the Commonwealth and the Secretary intended to remove the occupants from Australia.

97It will be noted that the claim does not, and, in my view, could not, assert that the occupants had a common law right to enter Australia. On the contrary, the claim is aimed at the provisions of the Act. As will appear, in my opinion, the absence of a claim of such a common law right is fatal to the occupants’ case for relief in the form of the common law prerogative writ of habeas corpus. As will be seen, this is not a mere pleading point. As a matter of substance, the common law has never recognised an alien’s right to enter territory.

The remedies claimed by way of permanent relief at first instance

98Upon those grounds, Mr Vadarlis claimed the following remedies by way of final relief:

·An injunction restraining the Minister, the Commonwealth, the Secretary and DIMA officers, and other Commonwealth “officers”, from interfering with or impeding contact by telephone and facsimile between Mr Vadarlis and the occupants.

·An order in the nature of mandamus compelling the Minister and the Secretary to perform their duties under s 256 and s 189(2) of the Act by (a) permitting Mr Vadarlis to make contact by telephone and by facsimile with those occupants who wish to speak to a lawyer; and (b) giving a visa application form to those occupants who, after speaking with Mr Vadarlis or another lawyer or migration agent, request such a form.

·An order in the nature of mandamus compelling the Minister and the Commonwealth to direct the Secretary, or alternatively to compel the Secretary, to detain the occupants pursuant to s 189(2).

·A declaration that the occupants were entitled to leave MV Tampa and to land in the territory of Australia.

·A declaration that Mr Vadarlis is entitled to communicate with the occupants for the purposes of giving legal advice about their detention and the legal proceedings available to them and for the purpose of facilitating access by the occupants to migration agents who could give them “immigration assistance” for the purposes of the Act.

·An injunction restraining the Minister, the Commonwealth, the Secretary and their officers from: (a) impeding, directly or indirectly, communication with the occupants by any person desiring to give migration advice; (b) preventing the occupants from disembarking MV Tampa when in Australian waters; and (c) preventing the occupants from landing on Christmas Island.

·A writ of habeas corpus directed to the Minister, the Commonwealth and the Secretary commanding them to release the occupants from custody.

The sources of the jurisdiction sought to be invoked for the grant of the remedies sought at first instance

99As sources of the Court’s jurisdiction to grant the relief applied for, Mr Vadarlis sought to invoke the provisions of s 39B(1), or alternatively s 39B(1A)(c) of the Judiciary Act 1903 (Cth). Relevantly, s 39B(1) invests original jurisdiction in the Court with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Relevantly, s 39B(1A)(c) invests the Court with jurisdiction also in any matter arising under any laws made by the Parliament.

The necessary components of Mr Vadarlis’ claim

100In my opinion, it is clear, on basic principles, that in order to obtain any of the final orders sought in his application, Mr Vadarlis had to establish the following:

·That there was a relevant substantive cause of action (that is, a legal right) recognised by law, and enforceable by this Court.

·That the Court was empowered to grant the specific form of relief sought.

·That it was appropriate, in the exercise of the Court’s discretion, to grant the relief sought.

This Court’s jurisdiction to issue a writ of habeas corpus

101It is equally clear, in my opinion, that a number of major jurisdictional issues arose on the claim for a writ of habeas corpus. In short, in my opinion, this Court is not invested with the power to issue such a writ. No such power is expressly invested and, in my view, no such implication should be made.

102The High Court’s jurisdiction to issue a writ of habeas corpus was considered by Deane J in Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman (1994) 123 ALR 478. There, the applicant applied to the High Court for a writ of habeas corpus directed to the officer in charge of cells at the ACT Supreme Court, claiming that his detention, pursuant to the order of a magistrate, was illegal because his initial arrest had been unlawful. It was held, in refusing the application, first, that the writ of habeas corpus was not available as a means of collaterally impeaching the correctness of orders made by a court of competent jurisdiction which was not shown to be a nullity (see also Phong v Attorney-General for the Commonwealth [2001] FCA 1241, Full Federal Court at [25]); and secondly, that the jurisdiction of the High Court to entertain an application for habeas corpus could only arise as an incident of the High Court’s original or appellate jurisdiction under other provisions, and did not derive from s 33(1)(f) of the Judiciary Act. (Section 33(1)(f) empowers the High Court to “direct the issue of writs … of habeas corpus…”.)

“[T]he claim for … habeas corpus fails because this Court has no general jurisdiction in that regard as its power is attached to and exercised in aid of Federal jurisdiction, whether original or appellate ….”

104A further, fundamental, question must arise as to the scope of the Court’s power to issue (as was done here) a writ of habeas corpus not merely to release the occupants, but also (in the context of a claim (as pleaded) clearly aimed at obtaining access to the statutory “migration zone”) to “bring those persons ashore to a place on the mainland of Australia”; in other words, to use the writ to achieve an entry to Australia, which entry would otherwise be without authority and unlawful. This Court, in my view, has no power to authorise such an entry. It is plain that this is exclusively a matter for the Executive (see MIEA v Guo (1997) 191 CLR 559 at 578 – 579; 598 – 600.)

105Another serious procedural defect, in my opinion, was the absence from the habeas corpus proceeding of the captain of MV Tampa. On any view, he was a necessary party to such a claim, as a matter of form and of substance (see R v Carter; Ex parte Kisch (1934) 52 CLR 221 per Evatt J at 223).

106However, provided the original jurisdiction of this Court is properly invoked, this Court could entertain a claim for an order in the nature of a writ of habeas corpus. The power to so order might, if appropriate, be found in s 23 of the Federal Court of Australia Act 1976 (Cth), whereby the Court is given “power, in relation to matters in which it has jurisdiction, to make orders of such kinds … and to issue, or direct the issue of, writs of such kind, as the Court thinks appropriate”. Another potential source of power might be the Court’s accrued or associated jurisdiction, provided again that the Court’s original jurisdiction was properly invoked.

107It might be thought that nothing significant would turn here on the question whether this Court may issue habeas corpus in the strict sense (as his Honour did) or an order in the nature ofhabeas corpus. In fact, there are two very significant practical implications, both of which his Honour relied upon in granting habeas corpus. First, it is much easier to establish standing to obtain habeas corpus than in the case of the other prerogative writs, and easier to show standing for habeas corpus than in an application for an injunction, particularly a mandatory injunction of the kind effectively issued here. Secondly, although as Taylor J noted in R v Langdon; Ex parte Langdon (1953) 88 CLR 158 (at 161) a writ of habeas corpus “does not issue as of course”, it is usually easier for an applicant to satisfy the Court’s discretion to issue habeas corpus than to obtain final relief in the case of the other prerogative writs, or in the case of an injunction, especially if relief is in the form of a mandatory order. But, in any event, in order to persuade a court to grant any form of discretionary relief, the occupants would need to confront the principle, as Lord Scarman has explained, that it is wrong that a person should rely on his or her own unlawful act (here, in practically compelling MV Tampa to divert from Indonesia to Christmas Island) to secure an advantage which could not have been obtained if the person had acted lawfully (see Shah and Akbarali v Brent London Borough Council [1983] 2 AC 309 at 344).

108Since the appeal is urgent, however, I am prepared to assume (without deciding) that for present purposes, Mr Vadarlis could have established in his favour all but one of the essential elements, previously mentioned; that is I will assume jurisdiction, standing, power to make the order made by his Honour, the presence of all necessary parties and that in the exercise of its discretion, it was appropriate to order (as a remedy) that the Minister, the Commonwealth and the Secretary “release [the occupants] and bring [them] ashore to a place on the mainland of Australia”. In other words, I reserve for consideration here only the single remaining element to be demonstrated by Mr Vadarlis, that is to say, the existence of a relevant substantive cause of action.

Could Mr Vadarlis have established a relevant substantive cause of action, that is, a right recognised by law, enforceable by this Court?

109In my opinion, not only was this the central question in the litigation, but the settled course of authority dictates that it be answered in the negative. In this fundamental respect, his Honour fell into error, in my view, for the following reasons.

110As has been noted, his Honour’s order requires all the respondents (who include the Commonwealth) to release certain persons, then bring them ashore to a place on mainland Australia. Necessarily, this involves the Court assuming a jurisdiction and power to compel the entry of those persons into the migration zone established under the Act, with the consequence that the applicable statutory provisions (of the Act) are then triggered and operate. But, in my opinion, this compulsory entry could only be justified if those persons have a right recognised by law to enter that zone. Yet “[a] court of law has no power to give effect to any but rights recognised by law” (see Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 464). As McHugh J said in Chu Kheng Lim v MILGEA (1992) 176 CLR 1 (at 68):

“Courts have no general power to order the release of person kept in custody pursuant to statutory enactments. In Waterside Workers’ Federation of Australia v. J. W. Alexander Ltd., Isaacs and Rich JJ, pointed out that ‘[a] Court of law has no power to give effect to any but rights recognised by law’.”

111That is to say, it is basic that a Court order may vindicate only those rights which are recognised by law. It appears, however, that North J assumed, without deciding, that such a relevant right existed here. The structure of his Honour’s reasons, as explained by French J, confirm that this was the primary Judge’s approach, especially given his Honour’s failure to advert to the impact of the Act when considering the common law claim for habeas corpus. In my opinion, if his Honour made that assumption, it was without foundation, as the authorities (see below) show. Rather, his Honour seemed to have approached the case upon the basis that habeas corpus is a free-standing remedy (which it plainly is not) and that, accordingly, it was not necessary to locate a substantive right (relevantly to enter Australia) to be vindicated by Court order. Instead of inquiring whether there was a substantive right in the occupants, his Honour focussed upon the scope of Executive power. In this way, with all respect, his Honour addressed the wrong question. As a consequence, his order is vitiated as seeking to do indirectly what could not be done directly, something which the law will not permit (see e.g. Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 349 per Dixon J; see also D K Singh “What cannot be done directly cannot be done indirectly” (1959) 32 ALJ 374; 33 ALJ 3). In my opinion, the primary Judge should have enquired whether at common law (habeas corpus being a common law remedy) there was a legal right in the occupants to enter Australia. If his Honour had asked this question, it would, in accordance with the settled course of authority, have been answered in the negative.

112The course of authority relevantly begins with Musgrove v Chun Teeong Toy (1891) AC 272, where the Privy Council held that, apart from statute, an alien has no legal right enforceable by action to enter Victoria. The Lord Chancellor said (at 282):

“…quite apart from the statutes …, a grave question [arises] as to the plaintiff’s right to maintain the action. He can only do so if he can establish that an alien has a legal right, enforceable by action, to enter British territory. No authority exists for the proposition that an alien has any such right. Circumstances may occur in which the refusal to permit an alien to land might be such an interference with international comity as would properly give rise to diplomatic remonstrance… but it is quite another thing to assert that an alien [so] excluded … by the executive government there, can maintain an action in a [common law] Court….”

113His Lordship went on to say (at 283):

“When once it is admitted that there is no absolute and unqualified right of action on behalf of an alien refused admission to British territory, their Lordships are of opinion that it would be impossible upon the facts which the demurrer admits for an alien to maintain an action.”

“The question [here] … is … of the right of a stranger to claim admission to a foreign country. That is a matter depending upon political, not upon civil, status. See per Lord Westbury in Udny v. Udny. It is settled law, as pointed out by this Court in the case of Robtelmes v. Brenan, quoting the decision of the Judicial Committee in Attorney-General for Canada v. Cain and Gilhula, that one of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, ….”

“No doubt a friendly alien is not for all purposes in the position of a British subject. For instance, he may be prevented from landing on British soil without reason given: Musgrove v. Chun Teeong Toy;…”

118Lord Phillimore said (at 296):

“The King, however, can refuse any alien admission to the realm. This was established by the decision of the Privy Council in Musgrove v. Chun Teeong Toy;…”

119In Ex parte Kisch, above, Evatt J said (at 223):

“In Musgrove v. Chun Teeong Toy, the Privy Council determined that an alien did not possess a ‘legal right, enforceable by action’, or an ‘absolute and unqualified right of action’ to enter British territory.”

120Evatt J went on (at 223) to refer to Johnstone v Pedlar, and to the power or prerogative to “refuse an alien admission to the realm”.

“As far as aliens are concerned, they can be excluded and prevented from remaining in the country at common law or by the authority of a statute: see Musgrove v. Chun Teeong Toy; Attorney-General for Canada v. Cain and Gilhula; R. v. Bottrill.”

“While an alien who is actually within this country enjoys the protection of our law, his or her status, rights and immunities under that law differ from the status, rights and immunities of an Australian citizen in a variety of important respects. For present purposes, the most important difference has already been identified. It lies in the vulnerability of the alien to exclusion …. That vulnerability flows from both the common law and the provisions of the Constitution. For reasons which are explained hereunder, its effect is significantly to diminish the protection which Ch. III of the Constitution provides, in the case of a citizen, against imprisonment otherwise than pursuant to judicial process.

The power to exclude … even a friendly alien is recognized by international law as an incident of sovereignty over territory.”

124Gaudron J said (at 57):

“Aliens, not being members of the community that constitutes the body politic of Australia, have no right to enter … Australia unless such right is expressly granted. Laws regulating their entry to and providing for their departure from Australia (including deportation, if necessary) are directly connected with their alien status. And laws specifying the conditions on and subject to which they may enter … Australia are also connected with their status as aliens to the extent that they are capable of being seen as appropriate or adapted to regulating entry or facilitating departure if and when departure is required.”

125It follows, in my view, that the occupants had no legal right at common law enforceable in a court to enter Australia. It must follow, in my view, that no foundation existed for the grant of a common law prerogative writ of habeas corpus compelling their entry into Australia. It is true that in other areas, some questions have not been finally settled. But in this regard, it is necessary to distinguish, for present purposes, between (a) the “right” of an alien outside Australia to enter and the source of the power to exclude and (b) excluding an alien and expelling an alien. That is to say, whatever questions may arise as to the power to deport without legislative backing (see Re Bolton; Ex parte Beane (1987) 162 CLR 514) there is nothing in any of the authorities to contradict the principle that an alien has no common law right to enter Australia. This aspect is beyond argument. For this reason alone, I would allow the appeal.

Postscript

126Finally, it should be added that this is a municipal, and not an international, court. Even if it were, whilst customary international law imposes an obligation upon a coastal state to provide humanitarian assistance to vessels in distress, international law imposes no obligation upon the coastal state to resettle those rescued in the coastal state’s territory. This accords with the principles of the Refugee Convention. By Art 33, a person who has established refugee status may not be expelled to a territory where his life and freedom would be threatened for a Convention reason. Again, there is no obligation on the coastal state to resettle in its own territory. Any extra-judicial assessment of Executive policy in the present circumstances should be seen in this context.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated: 18 September 2001

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY

V1007 OF 2001

On Appeal from a Single Judge of the Federal Court

BETWEEN:

THE HONOURABLE PHILIP RUDDOCK,

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

FIRST APPELLANT

THE COMMONWEALTH OF AUSTRALIA

SECOND APPELLANT

WILLIAM JOHN FARMER

THIRD APPELLANT

AND:

ERIC VADARLIS

FIRST RESPONDENT

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SECOND RESPONDENT

AMNESTY INTERNATIONAL LIMITED

THIRD RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V1008 OF 2001

On Appeal from a Single Judge of the Federal Court

BETWEEN:

THE HONOURABLE PHILIP RUDDOCK,

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

FIRST APPELLANT

THE HONOURABLE DARYL WILLIAMS

ATTORNEY-GENERAL

SECOND APPELLANT

THE HONOURABLE PETER REITH

MINISTER OF DEFENCE

THIRD APPELLANT

THE COMMONWEALTH OF AUSTRALIA

FOURTH APPELLANT

AND:

VICTORIAN COUNCIL FOR CIVIL LIBERTIES INC

FIRST RESPONDENT

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

SECOND RESPONDENT

AMNESTY INTERNATIONAL LIMITED

THIRD RESPONDENT

JUDGES:

BLACK CJ, BEAUMONT and FRENCH JJ

DATE:

18 SEPTEMBER 2001 (ORDERS MADE 17 SEPTEMBER 2001)

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

FRENCH J:

Introduction

127Three weeks ago the Norwegian vessel MV Tampa, acting on the request of the Australian Government, rescued 433 persons from a wooden fishing boat in the Indian Ocean. The persons rescued ("rescuees") were of Middle Eastern origin and apparently heading for Australia. The Captain tried to take the rescuees to Indonesia, but some of them objected. He then sailed to Christmas Island but was refused permission to land them. The port was closed by the Harbour Master. The Captain entered into and remained in Australian territorial waters off Christmas Island contrary to the directions of the Australian Government. He refused to leave because of the condition of some of his passengers and the risk of travelling across open water to Indonesia.

128The Australian Government sent troops to secure the vessel and to provide medical and humanitarian assistance to the rescuees. Subsequently arrangements were made by inter-governmental agreement for Nauru and New Zealand to receive them in order to determine whether all or any of them were entitled to the benefit of the Refugee Convention.

129Applications were filed by the Victorian Council of Civil Liberties ("VCCL") and a Victorian solicitor, Eric Vadarlis, claiming, inter alia, that the rescuees were being unlawfully detained by the Commonwealth and certain of its Ministers ("the Commonwealth") and seeking writs of habeas corpus. After an urgent hearing, North J granted the writs and directed the release of the rescuees on to the mainland.

130The Commonwealth and other ministerial respondents have appealed against the decision as a matter of urgency. Under arrangements which maintain the legal status quo the rescuees have been transferred to the naval vessel, HMAS Manoora, to be taken to Nauru. The appeals raise important questions about the executive power of the Commonwealth and its relationship to the Migration Act 1958 (Cth) and whether the rescuees were in truth detained by any action of the Commonwealth amenable to habeas corpus.

Factual Background

131On 26 August 2001, a wooden fishing boat travelling from Indonesia to Australia and carrying 433 people was sinking in the Indian Ocean about 140 kilometres north of Australia's Christmas Island Territory. A Norwegian registered container ship, the MV Tampa, was in the area at the time on its way from Fremantle to Singapore. It carried a crew of twenty seven and was under the command of Captain Arne Rinnan. The vessel is a 49,000 tonne container ship, licensed to carry no more than fifty people. Captain Rinnan received a call from Australian authorities asking him to rescue the people from the sinking boat. He was told it had eighty people on board. He agreed to assist and was guided to the boat by the Australian Coast Guard.

132The MV Tampa arrived at the location of the fishing boat at about 5pm. It took on board the 433 rescuees and inquired from the Australian Coast Guard where they should be taken. The Coast Guard officers said they did not know. The MV Tampa headed for Indonesia. Some of the rescuees objected. They said they would commit suicide if the captain did not change course for Christmas Island. The Captain then decided to sail to Christmas Island. When the vessel was approaching the Island, but still outside Australian territorial waters, Captain Rinnan was asked by Australian authorities to head back to Indonesia. The owners of the vessel then instructed James Neill, a solicitor, to act on their behalf and that of the Master. The Captain's position, as expressed by the solicitor in a fax sent the next day to the Department of Immigration and Multicultural Affairs (DIMA), was that if he sailed to Indonesia he would expose the vessel and those on board to a number of dangers in the open ocean which could have resulted in massive loss of life. In his view, the safest course was to continue for Christmas Island. The solicitor also made the point that the vessel did not have food and water on board to sustain the passengers and crew for long. The vessel, he said, was then lying offshore in good weather waiting for instruction and assistance for discharge of the passengers into lighters.

133On Monday, 27 August, the Cabinet Office asked Bill Taylor, the Administrator of Christmas Island, to ensure that no Australian vessel went out to the MV Tampa from the Island. Mr Taylor was told that Cabinet was considering the issue. He was asked to ensure that boats from Christmas Island did not attempt to reach the vessel. The Christmas Island port at Flying Fish Cove was closed. The Harbour Master signed an order prohibiting "all boat movements in and out of the Cove". Copies were placed on either side of the jetty. Barriers were erected at the end of the jetty and the public and local authorities on Christmas Island were notified in various ways of the closure of the port. The Administrator advised DIMA of what had been done. What had been done was done in reliance upon the Harbour Master's powers under s 5 of the Shipping and Pilotage Act 1967 (WA) which applies in the Territory. There has been no challenge to the lawfulness of that closure.

134Neville Nixon, an officer of DIMA, spoke by phone to Captain Rinnan. On the same day, Phillippa Godwin, First Assistant Secretary Detention Task Force of DIMA, sent a memo to the Captain as follows:

"This is to confirm your recent telephone conversation with Neville Nixon, DIMA. As Mr Nixon advised, the Australian Government at the highest level formally requests that you not approach Christmas Island and that you stand off at a distance at least equal to your current position - 13.5 nautical miles from the island.

Mr Nixon has advised that you have agreed not to proceed further until advised by the Australian Government.

The same message has been relayed by me to James Neal (sic) your shipping agent. He has indicated that he will seek to convey this same message to you and has indicated his expectation of your cooperation to the maximum extent possible."

135Mr Neill spoke to Ms Godwin at 11.30am. He confirmed their conversation in a fax that day in the following way:

"As discussed at approx 11.30 today the medical situation on board is critical. If it is not addressed immediately people will die shortly.

At this time, four people on board are unconscious, 1 Broken leg and 3 women are pregnant. Additionally diarrhoea is severe and a number of people are in a dangerously dehydrated condition. The ship has now run out of the relevant medical supplies and has no way of feeding these people.

It is a simple matter to send a boat from shore to collect the sickest people, supply food and medical assistance. It could be along side in 30 minutes.

At the request of the Australian Government the vessel is currently just off shore of Christmas Island. If the situation is not resolved soon more drastic action, may have to be taken to prevent loss of life." [bold in original]

136Captain Rinnan contacted the Royal Flying Doctor Service and reported that several of the rescuees were unconscious, that one had a broken leg and that two pregnant women were suffering pains. The Service did not regard the situation as requiring evacuation. Captain Rinnan was concerned however, at the deterioration in the condition of the rescuees and about the welfare of his crew. Because of his concerns he took the MV Tampa into Australian territorial waters at about 9am on 29 August and stopped about four nautical miles from Christmas Island. Within about two hours, forty five Special Armed Services (SAS) troops from the Australian Defence Force left Christmas Island and boarded the MV Tampa.

137The next day, 30 August, the Norwegian ambassador visited the MV Tampa where he was handed a letter signed "Afghan Refugees Now off the coast of Christmas Island". It stated, in part, as follows:

"You know well about the long time war and its tragic human consequences, and you know about the genocide and massacres going on in our country and thousands of innocent men, women and children were put in public grieve yards (sic), and we hope you understand that keeping view of abovementioned reasons we have no way but to run out of our dear homeland and to seek a peaceful asylum. And untill (sic) now so many miserable refugees have been seeking asylum in so many countries. In this regard before this Australia has taken some real appreciable initiatives and has given asylum to a high number of refugees from our miserable people. This is why we are whole-heartedly and sincerely thankful to you.

We hope you do not forget that we are also from the same miserable and oppressed refugees and now sailing around Christmas Island inside Australian boundaries waiting permit to enter your country.

But your delay while we are in the worst conditions has hurt our feelings. We do not know why we have not been regarded as refugees and deprived from rights of refugees according to International Convention (1951).

We request from Australian authorities and people, at first not to deprive us from the rights that all refugees enjoy in your country. And in the case of rejection due to not having anywhere to live on the earth and every moment death is threatening us. We request you to take mercy on the life of (438) men, women and children."

138The events involving the MV Tampa were by this time the subject of publicity in the media and public discussion. A Melbourne-based organisation, The Public Interest Law Clearing House, attempted, through a solicitor, to communicate with the MV Tampa to obtain authority from one of the rescuees to bring an application for a writ of habeas corpus. This attempt failed when the owners declined to co-operate in passing on a message to the rescuees.

139Another Melbourne solicitor, Eric Vadarlis, rang Captain Rinnan on 31 August and asked that he allow him to make contact with the rescuees. He was referred to the Owner's office in Oslo, which he rang. He was advised at 1.50pm that the management had decided that it would not authorise the Captain to allow him to speak to the rescuees. He wrote to the Minister for Immigration and Multicultural Affairs on the same day requesting that the persons on the ship who might wish to exercise their rights under s 256 of the Migration Act 1958 (Cth) be given the opportunity to do so, in particular by those persons being given access to himself. He received no reply.

140On the same day, 31 August 2001, between 5pm and 5.30pm, the Victorian Council for Civil Liberties Inc (VCCL) and Mr Vadarlis filed applications in the Court. The grounds of the VCCL application was as follows:

" On the grounds appearing in the affidavits of Emma-Louise Hunt, Philip Lynch and Danielle Anne Williams-Brennan all sworn 31 August 2001 and filed herein, the Applicant claims:

1. The Respondents bring before the Court the detainees referred to in the said affidavits and presently aboard the MV Tampa, to be dealt with according to law.

2. An order in the nature of mandamus to compel the First Respondents:

(a) To bring the detainees into a migration zone;

(b) To inform the detainees of their rights under s 194 of the Migration Act;

(c) To receive and deal with the applications of the detainees for protection visas under section 45 of the Migration Act.

3. Such further and other orders, directions or relief as to this Honourable Court seems fit.

B. CLAIM FOR INTERLOCUTORY RELIEF

AND the applicant claims by way of interlocutory relief orders as follows:

4. The Respondents do show cause why an order in the nature of a writ of habeas corpus should not issue out of this Court directed to them, requiring them to bring before the Court the detainees aboard the vessel Tampa, to be dealt with according to law;

5. An injunction restraining the Respondents from removing the MV Tampa from Australian territorial waters unless they first permit the detainees to disembark at an Australian port."

141The application named as respondents the Minister for Immigration and Multicultural Affairs, the Attorney-General, the Minister of Defence and the Commonwealth. The source of jurisdiction was not stated although the heading of the application made reference to ss 22 and 23 of the Federal Court of Australia Act 1976 and ss 47, 194 and 245F of the Migration Act.

142The Vadarlis application invokes the jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth). It named as respondents the Minister for Immigration and Multicultural Affairs, the Commonwealth and William Farmer, the Secretary and Chief Executive Officer of the Department of Immigration and Multicultural Affairs. The application claimed injunctions, mandamus, declaratory relief and:

"A writ of habeas corpus directed to the Respondents commanding them to release the rescuees from custody."

143At 9pm on 31 August, North J made an interlocutory order restraining the Commonwealth, the Minister and Mr Farmer, until the following day, from taking any steps to remove the MV Tampa from Australian waters. Applications for ex parte interlocutory relief were adjourned until the following day at 11am. On that day, the Solicitor-General, Mr Bennett QC, read to the Court an announcement which had just been made by the Prime Minister. The announcement stated:

"I am announcing today that we have reached agreement with the Governments of New Zealand and Nauru for the processing of the people rescued by the MV Tampa.

Under the terms of the agreement, the rescuees will be conveyed to Nauru and New Zealand for initial processing.

New Zealand has agreed to process 150 of those aboard the Tampa. It is envisaged that this will include family groups involving women and children. Those found to be genuine refugees in New Zealand would remain there.

The remainder of the rescuees will be assessed in Nauru and those assessed as having valid claims from Nauru would have access to Australia and other countries willing to share in the settlement of those with valid claims.

Australia will bear the full cost of Nauru's involvement in this exercise.

Arrangements will be made to safely transship the rescuees through a third country. We are currently in discussions with appropriate countries to effect this.

We are also working closely with the International Organisation for Migration and the UNHCR to ensure that these arrangements are managed carefully and that the rescuees receive appropriate counselling and assistance.

Australia will continue to ensure that the rescuees receive all necessary humanitarian assistance while these arrangements are put in place.

I would like to take this opportunity to express my Government's gratitude to the Governments of Nauru and New Zealand for their ready and constructive humanitarian assistance.

1 September 2001" (AB99)

The arrangements, described in the announcement, will be referred to herein as the "Nauru/NZ arrangements".

144Because the Commonwealth wanted to commence implementing the Nauru/NZ arrangements as soon as possible; and at the request of the parties, his Honour proceeded to a final hearing of the applications which commenced on Sunday, 2 September 2001. He did so having made directions for pre-trial discovery and other directions relating to witnesses.

145An interlocutory mediation process led to an agreement on 3 September between the parties so that the Nauru/NZ arrangements could be implemented without delay but without prejudice to the rights of the parties in the proceedings. The agreement, which was read into the transcript, was in the following terms:

"1. The interlocutory injunction is to be discharged.

2. No application is to be made for an undertaking as to damages in relation to the undertaking and other terms of this agreement.

3. The rescuees presently on board the MV Tampa will be transferred to the HMAS Manoora.

4. The Respondents undertake that:

4.1 None of the rescuees will be required to leave HMAS Manoora or removed from it until the determination of the proceedings before North J and any appeal by the Respondents to the Full Federal Court.

4.1A Clause 4.1 shall not prevent any of the rescuees who it is intended to charge with an offence being arrested and brought to any part of Australia or Christmas Island.

4.2 Notwithstanding 4.1 the Respondents or any of them may, if any of the rescuees so request, remove any such rescuee or permit him or her to leave for the purpose of transportation to any country requested by such rescuee and agreed to by the Respondents or any of them.

4.3 If the Respondents are unsuccessful in these proceedings and if the Court makes an order for the return of any or all of the rescuees to Australia (other than rescuees referred to in paragraph 4.2), the Respondents will comply with any such order.

4.4 In the event that the Respondents are unsuccessful in any appeal to the Full Court of the Federal Court and seek leave to appeal to the High Court of Australia, they are at liberty to apply for a stay of the order on such terms as may be agreed or determined by the court to which the application is made.

5. The Third Respondent agrees that the general effect of this Agreement will be made known to the rescuees.

6. The parties agree that this litigation, and any appeal flowing from it, will be conducted, on the basis of the evidence given at the trial including the agreed facts and that no party will seek relief or assert rights or legal consequences on the basis that the status of any alleged detention of the rescuees on HMAS Manoora is different to the status of any alleged detention on the MV Tampa.

7. The terms of this agreement are accepted by HREOC [Human Rights and Equal Opportunity Commission].

8. All parties will oppose intervention by any party not willing to be bound by the terms of this agreement (or in the case of HREOC, any party not willing to be bound by the terms of clause 6 of this agreement)."

146The agreement having been made, the rescuees were transferred from the MV Tampa to the naval vessel, HMAS Manoora. The Manoora then began to travel to Papua New Guinea under an agreement made between the Australian government and the government of Papua New Guinea for transhipment of the rescuees to Port Moresby and then by aircraft to Nauru and New Zealand. It was not in dispute that Manoora is an amphibious troop ship with extensive medical facilities on board, including two operating theatres.

147The final hearing before his Honour continued until 5 September. His Honour reserved his decision and on 11 September delivered judgment.

The Primary Judge's Orders

148The orders made by his Honour were in the following terms:

"1. Subject to paragraph 2, the respondents release those persons rescued at sea who were brought on board MV Tampa on or about 26 August 2001 and who were then transferred to HMAS Manoora on or about 3 September 2001, and bring those persons ashore to a place on the mainland of Australia.

2. Paragraph 1 operates from 5.00pm Australian Eastern Standard Time on 14 September 2001, or on the determination of any appeal from this decision to the Full Court of the Federal Court of Australia, whichever is later.

3. Paragraph 1 does not apply in respect of any of the said persons who indicate to the respondents that they do not wish to be released and brought ashore to a place on the mainland of Australia.

4. Liberty is granted to the parties to apply generally as to the implementation of the orders made in paragraph 1.

5 (a) Subject to (c) hereof the respondents are to pay to each of the applicants the costs of and incidental to the proceeding commenced by that applicant; and

(b) Subject to (c) hereof the respondents are to pay to Amnesty International Limited and the Human Rights and Equal Opportunity Commission their costs of and incidental to these proceedings; and

(c) Liberty is granted to the respondents to apply by 4.15pm on 13 September 2001 to vary the orders made in subparagraph (a) and (b) hereof. "

Amnesty International and HREOC had been given leave by his Honour to intervene in the proceedings.

149Appeals were instituted against his Honour's orders on the same day and a Full Court convened to hear the appeal on 13 September.

The Trial Judge's Decision

150The factual background already set out is derived from the findings of fact made by his Honour and the history of proceedings set out in his Honour's reasons for judgment. It should be noted, however, that the parties agreed a statement of facts which was received in evidence and which was in the following terms:

3. The Ship commenced proceeding towards an Indonesian port. Certain of the rescuees objected to this course and threatened to commit suicide whereupon the master altered course at their request for Christmas Island.

4. The Ship was refused permission to enter Australian Territorial Waters.

5. Nevertheless it did so. It is in Australian Territorial Waters but not in a port and therefore not in the Migration Zone.

6. There are 433 rescuees on board the ship, anchored about 4 nautical miles off Christmas Island and outside the port. They are not part of the crew of the MV Tampa.

7. The rescuees were picked up by the MV Tampa at the request of the Australian authorities.

8. They are not allowed to leave the ship except to leave Australian territorial waters. The Ship is free to leave Australian territorial waters.

9. No other vessels are permitted to approach the ship without the authorisation of the Commonwealth, whether through the SAS officers on board or otherwise who would refuse permission unless it was for the purpose of moving the rescuees out of Australian territorial waters and then subject to safety considerations and satisfaction of a bona fide intention not to move them to Australia.

10. Their movements on the ship are controlled by SAS officers and not by the Captain of the ship

11. SAS officers boarded the ship because it contained unlawful non-citizens who did not hold visas to enter Australia. The officers included by (sic) SAS medical personnel whose purpose was to render medical and humanitarian assistance in response to a distress signal. Part of the purpose was to provide security for the crew. Another part of the purpose was to deal with any medical emergencies and thus remove the basis for the distress signal and facilitate the departure of the ship from Australian Waters.

12. The ship has been forbidden by Australian authorities from proceeding any closer to Christmas Island and from entering the port. Thus far that instruction has been obeyed. The effect of the continuing presence of the SAS officers is that the captain and crew are unlikely to attempt to move the ship into the port. This is a consequence desired by the Australian Government.

14. None of the asylum seekers hold a visa entitling them to enter Australia. Therefore they would be unlawful non-citizens for the purposes of s 14 of the Migration Act if they entered the "migration zone" as that phrase is defined in s 5 of the Migration Act.

15. The evidence justifies an inference that many of the rescuees would, if entitled, wish to apply for protection visas, and would wish to leave the ship and enter Australia.

16. The rescuees have no access to communications with persons off the ship and persons off the ship are unable to communicate with them."

[numbering incorrect in original]

It is, and at all relevant times has been, the view of the Captain of the Tampa that he will not sail the Tampa out of Australian territorial waters while the rescuees are on board."

151His Honour summarised the arguments of the VCCL and Vadarlis thus:

"45 The order for release argument. On the basis that the Act does not apply to the situation of the rescuees, the applicants claim that the rescuees were detained by the respondents on board the MV Tampa without any legal authority. The applicants asked the Court to order the respondents to release the rescuees. The respondents agree that the Act does not apply to the situation of the rescuees, and also that an order for release would be made if the rescuees were detained without lawful authority. However, the respondents contended that the rescuees were not detained by the respondents, but were free to go anywhere other than Australia.

46 The power to expel argument. Again on the basis that the Act does not apply to rescuees the applicants claim that the respondents have no lawful authority to expel the rescuees from Australia. They contend that the Court should grant an injunction restraining the respondents from expelling the rescuees from Australia. This argument raises the question of the applicants' standing to seek such relief.

47 The section 245F argument.The applicants claim that s 245F(9) of the Act [see statutory framework below] applies to the situation of the rescuees and requires the respondents to bring them to the mainland of Australia. They seek mandamus to compel the respondents to perform that statutory duty. The respondents contended that the Act does not apply to the situation of the rescuees, and, in any event, the applicants do not have standing to bring the claim.

48. The section 189 argument. Mr Vadarlis claims that s 189 of the Act [see statutory framework below] applies to the situation of the rescuees and requires the respondents to take the rescuees into detention. He seeks mandamus to compel the performance by the respondents of this duty. Again the respondents argued, amongst other matters, that the Act does not apply to the situation of the rescuees, and, in any event, the applicants do not have standing to bring the claim.

49. The freedom of communication argument. Mr Vadarlis argued that the respondents had prevented him from communicating with the rescuees and had thereby denied him his implied constitutional freedom of communication. He seeks an injunction and mandamus to allow him to give legal advice to the rescuees."

152His Honour found, fatally to the claim for relief based upon ss 245F and 189 of the Migration Act, that VCCL and Vadarlis lacked standing to seek the injunctive orders and mandamus which they claimed. He so held on the basis of the decisions of the High Court in Australian Conservation Foundation Incorporated v The Commonwealth (1980) 146 CLR 493 and Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247. He found it unnecessary to come to a final view on Vadarlis' argument based on the implied freedom of political communication. His Honour did, however, find for VCCL and Vadarlis on their claims for habeas corpus.

153The essential steps in his Honour's reasoning were as follows:

1. The Court had jurisdiction to make an order in the nature of a writ of habeas corpus and that jurisdiction was not disputed.

3. There was a total restraint on the freedom of the rescuees. His Honour summarised his view of their situation thus:

"In my view the evidence of the respondents' actions in the week following 26 August demonstrate that they were committed to retaining control of the fate of the rescuees in all respects. The respondents directed where the MV Tampa was allowed to go and not to go. They procured the closing of the harbour so that the rescuees would be isolated. They did not allow communication with the rescuees. They did not consult with them about the arrangements being made for their physical relocation or future plans. After the arrangements were made the fact was announced to them, apparently not in their native language, but no effort was made to determine whether the rescuees desired to accept the arrangements. The respondents took to themselves the complete control over the bodies and destinies of the rescuees. The extent of the control is underscored by the fact that when the arrangements were made with Nauru there had been no decision as to who was to process the asylum applications there or under what legal regime they were to be processed. Where complete control over people and their destiny is exercised by others it cannot be said that the opportunity offered by those others is a reasonable escape from the custody in which they were held. The custody simply continues in the form chosen by those detaining the people restrained."

4. As far as the Commonwealth was concerned, the rescuees were free to go anywhere other than Australia and were only partially restrained.

5. The circumstances of the rescuees when viewed in their totality could not adequately be described as self-inflicted as the Commonwealth had submitted.

6. There were no real avenues of escape for the rescuees from the MV Tampa. There was no evidence that anybody was prepared to take them off the vessel and the chances of such an offer were limited given their large numbers and the closure of the nearest port. They could not leave on the MV Tampa as the Captain would not sail out of Australian waters while they were still on board. As to the Nauru/NZ option they had not been consulted about it. There was no evidence that the Prime Minister's statement had been read to them in languages they could understand. No selection had been made of who was to go to Nauru and who was to go to New Zealand. In assessing whether there was a reasonable means of egress, a relevant matter was their knowledge of any such recourse. The presence of the SAS troops, armed and in combat fatigues, was likely to have led the rescuees to the conclusion that they were bound to do as they were told. SAS troops controlled their movements on board the Tampa.

154Having concluded that there was a total restraint on the freedom of the rescuees, his Honour referred to the decision of the US Supreme Court in Jones v Cunningham 371 US 236 (1963) at 243. He elicited from it and from textbook commentary the proposition that:

"…the test whether a person is detained for the purpose of habeas corpus is whether the restraint imposed is one that is not shared by the public generally."

If that test were applied in the case before him, the VCCL and Vadarlis would be entitled to an order for release of the rescuees. He referred also to Chin Yow v United States 208 US 8 (1907), in which he said the facts were similar to the case before him.

155His Honour considered and rejected a contention from the Commonwealth that an order for release would not be available in the case before him because it was sought for the purpose of triggering other rights under the Migration Act. His Honour found that the purpose of the application was "to obtain the release of the rescuees from the alleged unlawful detention". (AB41) It was no barrier to the making of an order that the rescuees would be susceptible to detention under s 189(2) of the Act thereafter.

156His Honour also rejected a contention that he should decline to grant the relief sought on discretionary grounds. He rejected an argument that the Court "should not stand in the way of the exercise by the Executive of its attempt to protect the borders of Australia". He added that the designation of the place of release which appeared in his orders, was integral to the remedy of an order for release because the purpose of the detention was to expel the rescuees from Australia.

157His Honour then turned to the question whether there was any lawful basis for the restraint upon the liberty of the rescuees. The Commonwealth relied solely upon what the Solicitor-General described as the "prerogative power" to expel the rescuees. No reliance was placed upon any statutory powers under the Migration Act.

158In his Honour's opinion there was no relevant prerogative power. He relied upon the decision of the High Court in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 for the proposition that the deportation of aliens is now comprehensibly governed by statute. He referred also to an observation by Davies J in Mayer v Minister for Immigration and Ethnic Affairs (1984) 4 FCR 312 at 316:

"…whatever was, at one time, the common law prerogative power of the Crown in this matter, and that clearly was an arguable matter, at the present time the law with respect to the entry of persons to Australia and with respect to their expulsion is regulated by statute."

The learned primary judge then said, of the Migration Act:

"The Act contains comprehensive provisions concerning the removal of aliens (ss 198-9). In my view the Act was intended to regulate the whole area of removal of aliens. The long title of the Act is "[a]n Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons". It leaves no room for the exercise of any prerogative power on the subject: Attorney-General v De Keyser's Royal Hotel Ltd [1920] AC 508."

The Grounds of Appeal

159The grounds of the appeal in each case were as follows:

"2(a) The trial Judge erred in holding that the rescuees were detained aboard the MV Tampa by SAS troops;

(b) The trial Judge erred in holding that the Executive power of the Commonwealth did not authorise and support the expulsion of the rescuees and their detention for that purpose;

(c) The trial judge erred in holding that the effect of the provisions of the Migration Act1958 was that there was "no reason for the exercise of any prerogative power" to expel the rescuees and to detain them for the purpose of expulsion;

(d) The trial judge erred in failing to hold that the true purpose of the applicants was to bring the rescuees within the migration zone and that this was not a purpose for which habeas corpus should be granted;

(e) The trial judge erred in making the following findings of fact:

(i) Captain Rinnan decided to change course from Indonesia to Australia because of threats by five men to jump overboard;

(ii) the rescuees' circumstances were not 'self-inflicted';

(iii) concluding from the agreed facts that Captain Rinnan will not under any circumstances sail out of Australian waters while the rescuees are on board;

(iv) the means of egress by leaving with anybody who would take the rescuees overseas was not a real option;

(v) that it was not reasonable to expect nor was it a practical possibility that the rescuees could leave on the MV Tampa;

(vi) that the communication to the rescuees of the arrangements being made for their physical relocation or future plans was "apparently not in their native language";

(f) The trial judge should have held that the rescuees were not detained because they were at the relevant time able to take advantage of the Nauru/New Zealand arrangements;

(g) The trial judge erred in not finding that Captain Rinnan (who was not a respondent) was detaining the rescuees;

(h) The trial judge erred in making the order numbered 1 against the First and Second Respondents in proceeding V899 of 2001 and the First and Third Respondents in proceeding V900 of 2001, there being no evidence that such Respondents were detaining the rescuees at the time at which the order was made or at any other time;

(i) The trial judge erred in holding that the level of restraint required to order the release of someone detained was less than close physical confinement.

(3) The trial judge erred in ordering the respondents to pay the costs of the interveners."

Cross-Appeal

160VCCL and Vadarlis each filed a cross-appeal in relation to the trial judge's finding on the question of standing. Each sought a declaration that it had standing to seek the relief claimed (other than habeas corpus). Vadarlis sought an order remitting the matter to the trial judge for determination of the question whether he was entitled to the other relief he claimed, apart from the habeas corpus orders.

161In the event, each of VCCL and Vadarlis made what were described in the written outline of their arguments as "formal submissions" on the question, albeit they did not concede that the position was concluded against them at this level of appeal by the Australian Conservation Foundation and Bateman Bay decisions in the High Court. The directions given for the conduct of the appeal in this Court were given on the basis, expressed at a directions hearing before his Honour the Chief Justice, that these would remain formal submissions in the sense that they would not be developed and would preserve a position for argument if the matter were to reach the High Court. For these reasons the Court declined to allow counsel for Vadarlis to pursue the standing question as a substantive submission on this appeal - that course being objected to by the Solicitor-General.

Issues on the Appeal

162The key issues on this appeal are:

1. Whether the executive power of the Commonwealth authorised and supported the expulsion of the rescuees and their detention for that purpose.

2. If there was no such executive power, whether the rescuees were subject to a restraint attributable to the Commonwealth and amenable to habeas corpus.

Before considering these issues it is desirable to set out the relevant statutory frameworks.

163The Judiciary Act confers jurisdiction on the Federal Court in relation to matters arising under the Constitution and the laws of the Commonwealth thus:

"39B(1) Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

39B(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a) in which the Commonwealth is seeking an injunction or a declaration; or

(b) arising under the Constitution, or involving its interpretation; or

(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. "

164The powers of the Federal Court in aid of the exercise of its jurisdiction include those conferred by s 23 of the Federal Court of Australia Act:

"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate."

There was no suggestion that the Court lacked jurisdiction to entertain the application for the writ of habeas corpus, it being directed to the lawfulness of action taken purportedly in reliance upon the executive power of the Commonwealth under s 61 of the Constitution.

Statutory Framework - Migration Act 1958 (Cth)

165It is sufficient for present purposes to refer to those provisions of the Act relied upon by VCCL and Vadarlis as evidencing a legislative intention to exclude the operation of the executive power of the Commonwealth or the prerogative in relation to the expulsion of aliens from Australia and incidental powers.

166The long title of the Migration Act is:

"An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons."

The objects of the Act are set out in s 4:

"4(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

(3) To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.

(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act."

Among terms defined in s 5 of the Act are the following:

"detain means:

(a) take into immigration detention; or

(b) keep, or cause to be kept, in immigration detention; and includes taking such action and using such force as are reasonably necessary to do so;"

"enter Australia, in relation to a person, means enter the migration zone;"

"immigration detention means:

(a) being in the company of, and restrained by:

(i) an officer; or

(ii) in relation to a particular detainee - another person directed by the Secretary to accompany and restrain the detainee; or

(b) being held by, or on behalf of, an officer:

(i) in a detention centre established under this Act; or

(ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or

(iii) in a police station or watch house; or

(iv) in relation to a non-citizen who is prevented, under section 249, from leaving a vessel - on that vessel; or

(v) in another place approved by the Minister in writing;"

"migration zone means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:

(a) land that is part of a State or Territory at mean low water; and

(b) sea within the limits of both a State or a Territory and a port; and

(c) piers, or similar structures, any part of which is connected to such land or to ground under such sea;

but does not include sea within the limits of a State or a Territory but not in a port;"

"non-citizen means a person who is not an Australian citizen;"

"officer means:

(a) an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or

(b) a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or

(c) a person who is a protective service officer for the purposes of the Australian Protective Service Act 1987, other than such a person specified by the Minister in writing for the purposes of this paragraph; or

(d) a member of the Australian Federal Police or of the police force of a State or an internal Territory; or

(e) a member of the police force of an external Territory; or

(f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or

(g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given."

"port means:

(a) a proclaimed port; or

(b) a proclaimed airport;"

"unlawful non-citizen has the meaning given by section 14;"

167Section 6, as a matter of abundant caution, preserves the operation of the Act in parts of Australia outside the migration zone thus:

"6. To avoid doubt, although subsection 5(1) limits, for the purposes of this Act, the meanings of "enter Australia", "leave Australia" and "remain in Australia" and as well, because of section 18A of the Acts Interpretation Act 1901, the meaning of parts of speech and grammatical forms of those phrases, this does not mean:

(a) that, for those purposes, the meaning of "in Australia", "to Australia" or any other phrase is limited; or

(b) that this Act does not extend to parts of Australia outside the migration zone; or

(c) that this Act does not apply to persons in those parts."

The Act is extended to the territory of Christmas Island which is deemed to be part of Australia for the purposes of the Act and not a place outside Australia (s 7).

168The term "unlawful non-citizen" is defined in s 14:

"14(1) A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.

(2) To avoid doubt, a non-citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non-citizen."

A "lawful non-citizen" is one who is in the migration zone and holds a visa that is in effect (s13).

169Provision is made for non-citizens to enter Australia by way of the grant of a visa (s 29). General provisions relating to visas are found in Part 2, Division 3 of the Act. These include protection visas (s 36). A criterion, ie a necessary condition for the grant of a protection visa is that the applicant is:

"…a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

170Division 6 of Part 2 of the Act provides for certain non-citizens to be kept in immigration detention until such persons leave Australia or are given visas (s 176). It applies to people arriving in the migration zone by boat in the territorial sea of Australia between 19 November 1989 and 1 September 1994 (s 177).

"189(1) If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.

(2) If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a) is seeking to enter the migration zone; and

(b) would, if in the migration zone, be an unlawful non-citizen;

the officer must detain the person."

172There are procedural rights in ss 194 and 195 whereby detainees must be told of the consequences of detention (s 194) and, in particular, that they may apply for visas (s 195) and that the detention is continued until they are removed or deported from Australia or granted a visa. These procedural rights however do not apply to persons detained under s 189(2) (s 193(1)(c)).

173Unlawful non-citizens are to be removed from Australia under provisions contained in Division 8 of Part 2 of the Act (ss 198 and 199). Division 9 relates to deportation of non-citizens. Division 12 creates offences in relation to the carriage of non-citizens to Australia without documentation (s 229) and the concealed carriage of unlawful non-citizens (s 230). Section 232A relates to the bringing into Australia of a group of five or more people.

174Division 12A contains provisions relating to the pursuit and boarding of ships which are applicable to Australian territorial waters beyond the migration zone (s 245B to s 245F). Section 249 of the Act provides:

"249(1) An officer may:

(a) prevent a person whom the officer reasonably suspects to be an unlawful non-citizen from leaving a vessel on which the person arrived in Australia; or

(b) prevent a remove or deportee from leaving a vessel on which he or she has been placed;

and may take such action and use such force as are necessary for that purpose.

(1AA) An officer may prevent a person from leaving a vessel on which the person arrived in Australia if the officer reasonably suspects that the person:

(a) is seeking to enter the migration zone; and

(b) would, if in the migration zone, be an unlawful non-citizen.

(1A) To avoid doubt, and without limiting the generality of subsections (1) and (1AA), if a person of a kind referred to in paragraph (1)(a) or subsection (1AA) is on board a vessel (other than an aircraft), the actions that may be taken by an officer under subsections (1) and (1AA) include:

(a) requiring the vessel to travel to a port; and

(b) requiring the person to remain on the vessel until it arrives at the port.

(2) The master of a vessel may, in relation to persons on board the vessel, do all things which an officer is, under subsections (1) and (1AA), authorized to do."

175The power to enter and search a vessel extends to the case in which an officer reasonably suspects that there is on board the vessel "a person seeking to enter the migration zone who would, if in the migration zone, be an unlawful non-citizen" (s 251(1)(b)(ii)).

The Executive Power of the Commonwealth - Source and General Character

176The Commonwealth of Australia is constituted by the Commonwealth of Australia Constitution Act 1900 (s 4). The legislative executive and judicial powers of the Commonwealth are conferred by the Constitution and not otherwise. The executive power is provided for in s 61:

"The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution and of the laws of the Commonwealth."

Section 61 is the primary source of executive power. Its content extends to the execution and maintenance of the Constitution and the laws of the Commonwealth. It is also limited by those terms in so far as it will not authorise the Commonwealth to act inconsistently with the distribution of powers and the limits on power for which the Constitution provides. Nor will it authorise the Commonwealth to act otherwise than according to the laws of the Commonwealth. Other provisions of the Constitution vesting powers in the Governor-General may be seen as distinct sources of executive power on their specific topics and as giving content to the power conferred by s 61.

177At the time of federation and the early years of the Commonwealth it seems to have been assumed that a number of the common law prerogatives of the Crown such as the power to declare war, enter treaties or acquire territories, were not subsumed in s 61 but remained with the Crown to be exercised upon the advice of Imperial Ministers - Zines, The High Court and the Constitution 4th Edition (1997) at 251. Even so, there was apparent a broad view of the content of s 61 in the observation of Isaacs J in Farey v Burvett (1916) 21 CLR 433 at 452 that:

"These provisions carry with them the royal war prerogative, and all that the common law of England includes in that prerogative so far as it is applicable to Australia."

178The modern relationship of the power to the prerogatives of the Crown was stated by Mason J in Barton v The Commonwealth (1974) 131 CLR 477 at 498:

"The Constitution established the Commonwealth of Australia as a political entity and brought it into existence as a member of the community of nations. The Constitution conferred upon the Commonwealth power with respect to external affairs and, subject perhaps to the Statute of Westminster 1931 and the Balfour Declaration, entrusted to it the responsibility for the conduct of the relationships between Australia and other members of the community of nations, including the conduct of diplomatic negotiations between Australia and other countries. By s 61 the executive power of the Commonwealth was vested in the Crown. It extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth. It enables the Crown to undertake all executive action which is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution. It includes the prerogative powers of the Crown, that is, the powers accorded to the Crown by the common law."

179The use of the "prerogative" to describe such a power may properly acknowledge its historical antecedents but not adequately illuminate its origins in s 61 of the Constitution. For it is s 61 that "…confers on the Commonwealth all the prerogative powers of the Crown except those that are necessarily exercisable by the States under the allocation of responsibilities made by the Constitution and those denied by the Constitution itself." - Davis v The Commonwealth (1988) 166 CLR 79 at 93 (Mason CJ, Deane and Gaudron JJ) citing The Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd ("the Wooltops case") (1922) 31 CLR 421 at 437-439. As Gummow J said in Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 369:

"In Australia, … one looks not to the content of the prerogative in Britain, but rather to s 61 of the Constitution, by which the executive power of the Commonwealth was vested in the Crown."

180The "spheres of responsibility vested in the Crown by the Constitution" and referred to by Mason J in Barton were described in Davis as "…derived from the distribution of legislative powers effected by the Constitution itself and from the character and status of the Commonwealth as a national polity" (at 93). In like vein Brennan J agreed generally with the observation of Jacobs J in Victoria v The Commonwealth and Hayden ("the AAP case") (1975) 134 CLR 338 at 406 that the phrase "maintenance of the Constitution" imports the idea of Australia as a nation. Jacobs J said in the AAP case:

"Within the words "maintenance of this Constitution" appearing in s 61 lies the idea of Australia as a nation within itself and in its relationship with the external world, a nation governed by a system of law in which the powers of government are divided between a government representative of all the people of Australia and a number of governments each representative of the people of the various States."

Brennan J saw the phrase as assigning to the Executive government functions relating "not only to the institutions of government but more generally to the protection and advancement of the Australian nation" - referring to Burns v Ransley (1949) 79 CLR 101 at 109-110 and Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 187-188.

The Executive Power of the Commonwealth - Subject to Parliamentary Control

181The executive power can be abrogated, modified or regulated by laws of the Commonwealth. Its common law ancestor, the Royal Prerogative, was similarly subject to abrogation, modification or regulation by statute. As Lord Denning observed in Laker Airways Ltd v Department of Trade [1977] 1 QB 643 at 705, it was described by Blackstone, drawing on Locke's True End of Civil Government, as:

"…the discretionary power of acting in the public good where the positive laws are silent."

Lord Denning himself described it as "… a discretionary power exercisable by the executive government for the public good, in certain spheres of governmental activity for which the law has made no provision…."

182The conceptual bases upon which it is said that statute law may abrogate or regulate the prerogative were variously proposed in Attorney-General v De Keyser's Royal Hotel, Limited [1920] AC 508. Implied assent by the Crown (526), the futility of concurrent powers, one regulated and the other not (539), a presumption that the Crown resorts to statute rather than its unqualified power (554) and simple parliamentary sovereignty (576) encapsulate the approaches taken by the Law Lords in that case. In the end, however, there was nothing in their approaches which permitted avoidance of the need to construe the relevant statute to determine whether, by express words or necessary implication, it has any, and if so what, operation upon the prerogative power. For it may be as Lord Sumner seemed to allow that a statute dealing with the same matter as the prerogative power could have as its object "…to provide an additional mode of attaining the same object" (561). It has been broadly stated that the royal prerogative ceases to apply to a matter once it has been made the subject of legislation - Walker v The Queen [1994] 2 AC 36 at 41. That is not to say that any statute, however confined its effect upon a matter covered by the prerogative is to be taken as displacing it.

183The executive power of the Commonwealth under s 61 cannot be treated as a species of the royal prerogative, "The residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown." - De Keyser at 526. While the executive power may derive some of its content by reference to the royal prerogative, it is a power conferred as part of a negotiated federal compact expressed in a written Constitution distributing powers between the three arms of government reflected in Chapters I, II and III of the Constitution and, as to legislative powers, between the polities that comprise the federation. The power is subject, not only to the limitations as to subject matter that flow directly from the Constitution but also to the laws of the Commonwealth made under it. There is no place then for any doctrine that a law made on a particular subject matter is presumed to displace or regulate the operation of the executive power in respect of that subject matter. The operation of the law upon the power is a matter of construction.

184That construction, while governed ultimately by the terms of the statute under consideration, is informed by a requirement for a clear intention to displace the power. In Barton, Barwick CJ used the term "extremely strong", to describe "the rule that the prerogative of the Crown is not displaced except by a clear and unambiguous provision" - (488). Mason J referred to the "well accepted" requirement "that a statute will not be held to abrogate a prerogative of the Crown unless it does so by express words or by implication, that is, necessary implication" - (at 501 citing De Keyser). McTiernan and Menzies JJ adopted the same approach (at 491). Jacobs J said that "…an intention to withdraw or curtail a prerogative power must be clearly shown" - (508). He referred also in that context to the importance of the right to communicate freely with a foreign state which was the power there in issue, the case being one about an extra statutory request by Australia for extradition of a person from Brazil. In Ling v Commonwealth (1994) 51 FCR 88, the Full Court (Gummow, Lee and Hill JJ) considered the effect of legislation upon the power of the Crown to take an assignment of a chose in action. They referred to the passages cited above from Barton and, with approval, to the statement of Street J in Booth v Williams (1909) 9 SR (NSW) 421 at 440 that "it is presumed that the Legislature does not intend to deprive the Crown of any prerogative right or property unless it expresses its intention to do so in explicit terms or makes the inference irresistible " (at 92). In Oates v Attorney-General (Cth) (2000) 181 ALR 559, Lindgren J referred to what Barwick J had said in Barton about the requirement for a clear and unambiguous provision to "displace" the prerogative of the Crown and added:

"…I regard the word "displaced" in this sentence as including the notion of partial displacement, that is, confinement, restriction or limitation." (569)

185The executive power of the Commonwealth covers a wide range of matters, some of greater importance than others. Some are intimately connected to Australia's status as an independent, sovereign nation State. The relevance of the importance of the particular power to the question whether it has been displaced by a statute, appears to have been accepted by Jacobs J in Barton. The greater the significance of a particular executive power to national sovereignty, the less likely it is that, absent clear words or inescapable implication, the parliament would have intended to extinguish the power. In such a case close scrutiny will be required of any contention that a statute, without express words to that effect, has displaced the operation of the executive power by virtue of "covering the field" of the subject matter. Even in De Keyser the possibility was allowed by Lord Sumner that a statute dealing with a subject matter covered by the prerogative might have as its object the creation of another way of dealing with the subject which does not displace the prerogative.

The Executive Power - The Gatekeeping Function

186English courts have long recognised the general proposition of international law that:

"…the supreme power of every state has a right to make laws for the exclusion or expulsion of a foreigner…" - In Re Adam [1837] 1 Moo PC; 12 ER 889

In that case the court recognised a power in the Governor in Council of the Colony of Mauritius "as the depositaries of the executive authority of the Crown, to remove at pleasure all aliens not protected by any special privilege" (470). The power of a State under international law to remove aliens was recognised indirectly by the Privy Council in its approval of the judgment of Kerferd J in the Full Court of the Supreme Court of Victoria in Toy v Musgrove (1888) 14 VLR 349 where it was said:

"…it seems beyond question that every nation may exercise the right of excluding aliens without giving offence to the country to which those aliens belong."

See Musgrove v Toy [1891] AC 272. The principle was explicitly recognised by the Privy Council in Attorney-General for Canada v Cain [1906] AC 542:

"One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests." (546)

A State could also do all those things which must be done for the effective exercise of the power to expel. It is true that the Privy Council was addressing the exercise of legislative power, being concerned with the question whether the Alien Labour Act of Canada was invalid for territorial overreach. Their observations however were directed to the incidents of statehood at international law. The way in which the right to expel or to refuse entry is exercised, and whether by legislative or executive means, may vary according to the constitutional mechanisms of particular States.

187There is a statement in Forsyth's Cases and Opinions on Constitutional Law, Steven and Haynes (1869) p 181 that:

"…the Crown has no power by its prerogative alone, to send anyone, whether he be a subject or an alien compulsorily out of the realm."

In the same passage in which this was stated the learned author said that Lord Ellenborough CJ had contended in debate in the House of Lords in 1816 on the Aliens Bill that at common law the Crown had the right by the royal prerogative to send all aliens out of the kingdom. But this, according to the writer, was "certainly not the law of England". No authority was referred to by Forsyth in support of the argument beyond the fact that alien acts had been passed from time to time in order to give analogous statutory power to the Executive.

188A contention that the Governor of the Colony of New South Wales had power independent of statute to exclude foreigners from the colony was rejected by the Full Court of the Supreme Court of New South Wales in Ex parte Lo Pak (1888) 9 NSWR 221. There a Chinese subject with a statutory right of residence in New South Wales returned to the colony after a nine month visit to China. He returned on the British steamship "Afghan" but was prevented by police, under direction of the Governor, from disembarking at Sydney harbour. He applied for and was granted habeas corpus. All three of the judges rejected, albeit obiter, the submission that the Governor of the Colony possessed a prerogative power to exclude foreigners (at 237 per the Chief Justice, 244 per Windeyer J, 248 per Foster J). The Chief Justice doubted whether the British Crown had such power but:

"…even supposing the King or Queen of England have power by proclamation to prevent aliens from entering the kingdom, and a statute to be unnecessary, yet that power so vested is a power personal to the Sovereign, and cannot be delegated either to the Governor, or to the Government of this colony." (238)

Windeyer J accepted that the Executive Government would have power "to exclude foreigners from landing if they come infected with disease, or in such vast and overwhelming numbers as really to threaten danger to our liberties, though they should come in peaceful guise". It was enough to say however, that there were "not half a million of Chinese waiting to be landed, and no impending danger to the country [was] shewn upon the affidavits." (243)

189A similar application for habeas corpus was made and succeeded in Ex parte Leong Kum (1888) 9 NSWR 254. The Chief Justice in that case expressed more fully his view that the colony lacked the power of a sovereign State to exclude foreigners (255-256). See also Windeyer J at 261-262 and 265.

190It is to be noted that in relation to each of these cases the executive order appeared to have been made contrary to a statute under which there was at least an implied permission to Chinese immigrants to enter the colony - see the discussion by Innes J in Ex parte Leong Kum at 267-268. These cases, although, like Forsyth, adverting to the absence of any relevant exercise of exclusionary prerogative power by the British Crown, turned upon the existence of a statutory permission to enter the colony and, albeit obiter, the fact that the colony was not a sovereign nation.

191The scope of the executive power conferred by s 61 of the Constitution is to be measured by reference to Australia's status as a sovereign nation and by reference to the terms of the Constitution itself. The effect of the statute law, in this case the Migration Act, will be considered separately.

192It is not necessary for present purposes to consider the full content of executive power and the extent to which it may operate upon the subject matter of the heads of Commonwealth legislative power. Given that the legislative powers conferred by s 51 are concurrent with those of the States, subject to the paramountcy of Commonwealth statutes, (covering cl 5 and s 109) it could not be said that, absent statutory authority, executive power may be exercised in relation to all those matters. There are legislative powers however which may be seen as central to the expression of Australia's status and sovereignty as a nation. They include the powers to make laws with respect to naturalisation and aliens (s 51(xix)), immigration and emigration (s 51(xxvii)) and the influx of criminals (s 51(xxviii)). Australia's status as a sovereign nation is reflected in its power to determine who may come into its territory and who may not and who shall be admitted into the Australian community and who shall not. That power may also be linked to the foundation of the Constitution in popular sovereignty implied in the agreement of the "people" of the pre-federation colonies "to unite in one indissoluble federal Commonwealth". It may be said that the people, through the structures of representative democracy for which the Constitution provides, including an Executive responsible to the Parliament, may determine who will or will not enter Australia. These powers may be exercised for good reasons or bad. That debate, however, is not one for this Court to enter.

193In my opinion, the executive power of the Commonwealth, absent statutory extinguishment or abridgement, would extend to a power to prevent the entry of non-citizens and to do such things as are necessary to effect such exclusion. This does not involve any conclusion about whether the Executive would, in the absence of statutory authority, have a power to expel non-citizens other than as an incident of the power to exclude. The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the Government of the nation would lack under the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australia community, from entering.

194The Australian case law does not resolve the question before this Court. Robtelmes v Brenan (1906) 4 CLR 395 was concerned with the validity of a Commonwealth Act, the Pacific Islands Labourers Act 1901, providing for the deportation of unemployed Pacific Islanders, albeit they may have been brought into Australia under the Pacific Island Immigration Act (Qd). The general propositions in Attorney-General for Canada v Cain were adopted (400 Griffith CJ; 413-414 Barton J; 419 O'Connor J). It was accepted that the power to exclude aliens includes the power to deport them. It was not necessary for the Court to consider whether the Executive would have such a power absent statutory authority. Griffiths CJ doubted "…whether the Executive authority of Australia, or of any State, could deport an alien except under conditions authorized by some Statute…" but found it "not necessary to discuss that question now" (403). Barton J observed that:

"Whether expulsion in Great Britain or in one of her self-governing Colonies or States, requires statutory authority has, no doubt, been the subject of some hesitation on the part of eminent lawyers, but it is not necessary for us to decide that question. It does not arise." (414)

He did refer, however, to the comment in the Encyclopaedia of the Laws of England, vol 5 p 268 which mentioned dicta of Blackstone (1 Com 366) and Chitty (Pleas of Crown ed 1820 p 49) to the effect that the Crown by its prerogative could expel even alien friends but that there did not seem to have been any attempt since the Revolution to exercise such prerogative. The "extrusion of alien friends has since then always been effected by statutory authority."

195It has been said that the common law of Australia knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action - Re Bolton; Ex Parte Beane (1987) 162 CLR 514 at 528 (Deane J) and Chu Kheng Limv Minister for Immigration, Local Government and Ethnic Affairs at 19 (Brennan, Dawson and Deane JJ). Those observations were made in the context of cases about the surrender of a resident of Australia to another country (Bolton; Ex Parte Beane) and the validity of statutory provisions for the detention of unlawful non-citizens who arrived in Australia as boat people between November 1989 and December 1992 (Chu Kheng Lim).

196Reliance was placed upon the observation by Davies J in Mayer v Minister for Immigration and Ethnic Affairs at 316 that whatever may have been the common law prerogative of the Crown "…at the present time the law with respect to the entry of persons to Australia and with respect to their expulsion is regulated by statute".

197The reference to the common law of Australia in Beane and Lim and to the common law prerogative of the Crown in Mayer do not deal with the question whether, absent statutory authorisation, s 61 of the Constitution confers upon the Executive a power to exclude or prevent the entry of a non-citizen to Australia and powers incidental thereto. In my opinion, absent statutory authority, there is such a power at least to prevent entry to Australia. It is not necessary, for present purposes, to consider its full extent. It may be that, like the power to make laws with respect to defence, it will vary according to circumstances. Absent statutory abrogation it would be sufficient to authorise the barring of entry by preventing a vessel from docking at an Australian port and adopting the means necessary to achieve that result. Absent statutory authority, it would extend to a power to restrain a person or boat from proceeding into Australia or compelling it to leave.

198The question for determination now is whether, if such power exists absent statute, it has been abrogated by the Migration Act.

Whether the Executive Power to Exclude Aliens is Abrogated by the Migration Act

199The long title of the Migration Act marks it as a control mechanism for regulating the entry into Australia of aliens, or non-citizens, as they are now termed. This is apparent from its sole object set out in s 4(1) "to regulate, in the national interest, the coming into and presence in, Australia of non-citizens". The other subsections of s 4 relate to what the Act provides in order "to advance its object". The Act is not therefore concerned to create rights of entry except in particular circumstances where it establishes machinery for the discharge of Australia's protection obligations under the Refugee Convention 1951 as amended by the 1967 Protocol. There is no doubt however that the Act provides a comprehensive regime for preventing unlawful non-citizens from entering into Australia and for their removal from Australia if they do so enter. It confers substantial powers on the Executive in aid of its object. These include the powers under Division 12A of Part 2 which relate to the pursuit and boarding of foreign ships in Australian waters - s 245B(2), s 245C and s 245F.

200It was submitted for VCCL and Vadarlis that the Act covers the field of unlawful entry into Australia in a way that manifests an intention to displace any executive power in relation to the same subject matter. Reliance was placed, in particular, upon ss 198 and 199 providing for the removal of unlawful non-citizens from Australia, ss 200-206, providing for their deportation and the pursuit and boarding provisions of Division 12A. Reference was also made to s 189 of the Act. That section authorises officers to "detain" persons who are within Australia, for example in the territorial waters, but not in the migration zone as defined where they would be unlawful non-citizens if they were to enter the migration zone. It is a specific control mechanism and a significant element of it is imported by the use of the word "detain". That is defined in terms of "immigration detention". That term is itself defined by reference to "being in the company of, and restrained by" an officer or other authorised person or being held by, or on behalf of, an officer in one or other of the places referred to in par (b) of the definition. This may include being held by, or on behalf of, an officer on a vessel when the non-citizen is prevented under s 249 from leaving the vessel.

201The question is whether the Act operates to abrogate the executive power under s 61 to prevent aliens from entering into Australia. There are no express words to that effect. It is necessary then to look to whether by implication it has that effect. It is not necessary for this purpose either to determine the full extent of the executive power or the full effect of the Act upon it. It is sufficient to ask whether the Act evinces a clear and unambiguous intention to deprive the Executive of the power to prevent entry into Australian territorial waters of a vessel carrying non-citizens apparently intending to land on Australian territory and the power to prevent such a vessel from proceeding further towards Australian territory and to prevent non-citizens on it from landing upon Australian territory.

202In considering what is the implied intention of the Act and in particular the provisions referred to earlier, it is necessary to have regard not only to the general approach, supported by authority, to the question whether executive power is taken to be abrogated by statute, but also the importance to national sovereignty of the particular power in question. In my opinion the Act, by its creation of facultative provisions, which may yield a like result to the exercise of executive power, in this particular application of it cannot be taken as intending to deprive the Executive of the power necessary to do what it has done in this case. The Act confers power. It does not in the specific area evidence an intention to take it away. The term "intention" of course is a fiction. What must be asked is whether the Act operates in a way that is necessarily inconsistent with the subsistence of the executive power described. It is facultative. Its object is control of entry. Subject to certain specific provisions, such as those relating to the grant of protection visas, its object is not to confer rights upon non-citizens seeking to enter Australia. There are of course process rights at various stages of the visa granting system including those arising under the provisions of Part 8 relating to judicial review but they do not operate in the circumstances to which the executive power posited for the purposes of this case applies.

203Australia has obligations under international law by virtue of treaties to which it is a party, including the Refugee Convention of 1951 and the 1967 Protocol. Treaties are entered into by the Executive on behalf of the nation. They do not, except to the extent provided by statute, become part of the domestic law of Australia. The primary obligation which Australia has to refugees to whom the Convention applies is the obligation under Article 33 not to expel or return them to the frontiers of territories where their lives or freedoms would be threatened on account of their race, religion, nationality, or membership of a particular social group or their political opinions. The question whether all or any of the rescuees are refugees has not been determined. It is questionable whether entry by the Executive into a convention thereby fetters the executive power under the Constitution, albeit there may be consequences in relation to the processes to be applied in the exercise of that power or relevant statutory powers - Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. In this case, in my opinion, the question is moot because nothing done by the Executive on the face of it amounts to a breach of Australia's obligations in respect of non-refoulement under the Refugee Convention.

204The steps taken in relation to the MV Tampa which had the purpose and effect of preventing the rescuees from entering the migration zone and arranging for their departure from Australian territorial waters were within the scope of executive power. The finding does not involve a judgment about any policy informing the exercise of that power. That is a matter which has been and continues to be debated in public and indeed international forums. Through that debate and the parliamentary process the Ministers involved can be held accountable for their actions. If Parliament is concerned about the existence of an executive power in this area, deriving from s 61 of the Constitution, it can legislate to exclude it by clear words. The task of the Court is to decide whether the power exists and whether what was done was within that power, not whether it was exercised wisely and well.

205It should be added that the closure of the Christmas Island port itself was done under statutory authority which was not challenged. The other steps taken by the Commonwealth, having been taken within the executive power, there is no basis, assuming there was a relevant restraint on liberty, for the award of the remedy which was granted.

Whether the Rescuees were Subject to a Restraint Attributable to the Commonwealth and Amenable to Habeas Corpus

206It was submitted for the Commonwealth that habeas corpus did not lie as the rescuees were not detained. For a detention to take place the detainer must subject the detainee to a total restraint of movement. Partial restraint was to be distinguished from detention. To obstruct a person from going in a particular direction, it was argued, does not constitute detention. The rescuees were only prevented from going to their preferred destination. That limited restriction, it was submitted, did not constitute detention given that they were free to proceed to any other destination. It was contended for VCCL and Vadarlis that "close custody" is not necessary to attract the remedy of habeas corpus. In the alternative it was submitted that North J was correct to conclude, as a matter of fact, that the restraint upon the rescuees was total. I do not accept the argument for the Commonwealth insofar as it may be taken to suggest that a "total restraint of movement" is necessary to constitute detention amenable to habeas corpus.

207There seems to be a variety of views across and within jurisdictions about the level of restraint on liberty necessary to attract the remedy - see Clark and McCoy, The Most Fundamental Legal Right - Habeas Corpus in the Commonwealth, Clarendon Press, Oxford (2000) p 183 et ff. Authorities including Bird v Jones [1845] 7 QB 742; [1845] 115 ER 668 and Syed Mahamad Yusuf-ud-din v Secretary of State for India (1903) 10 TLR 496 were cited by the Commonwealth. In the first case no action for the tort of false imprisonment would lie where the plaintiff was prevented from proceeding along a section of public footway closed off for the spectators of a boat race. But in that case Patterson J (with whom Coleridge and Williams JJ also agreed albeit publishing separate judgments) allowed that if a person compels another to stay in any given place against his will he imprisons that other just as much as if he locked him up in a room. Compelling a person to go in a given direction against his will could amount to imprisonment. The Privy Council in the second case took the view that from the time at which a person was released on bail he was not imprisoned for the purposes of the tort. Burns v Johnston (1916) 2 IR 444 involved a factory worker refused egress from the workplace under terms and conditions of his employment which provided that the gate to the workplace would not be unlocked before 6.30pm. He had submitted to those terms. While the factory owner could not actively prevent him from leaving, he was not bound to open the gate early to allow him to do so.

208The false imprisonment cases are of some but limited assistance in considering the circumstances in which habeas corpus will issue and themselves allow for the possibility of something less than a complete restraint on liberty as a prerequisite to the tort. Habeas corpus is concerned with restraints on liberty imposed by a public officer or authority.

209There are many forms of restraint on liberty that may be imposed under colour of lawful authority. While "close custody" may have been a condition of the remedy in the past, it is not a condition that should fetter artificially the function of habeas corpus as a remedy for unauthorised restraint be it total or partial. There have been cases analogous to the present in which intending entrants onto a territory, being barred from entry, have been treated as detained. In Ex parte Lo Pak, Windeyer J said at 247-248:

"It is idle to urge that, because this ship can go anywhere the captain likes to take it, and because the applicant is free to go wherever the ship goes, that he is not imprisoned. What answer is that to this application? Compelling him to stay on board the ship is exactly what the applicant complains of as an illegal restraint upon his liberty."

See also Ex parte Leong Kum at 256-257. In those cases however the applicants were restrained from going where they were entitled to go and the restraint was held to be sufficient for the purposes of the writ.

210United States' cases favour the view that even a partial restraint will attract the writ albeit they must be read in their constitutional context. Jones v Cunningham concerned a prisoner on parole held to be "in custody" for the purposes of habeas corpus. The statute conferring the relevant jurisdiction conditioned it on the applicant being "in custody" - 28 USC 224. The Supreme Court acknowledged that the chief use of habeas corpus had been to seek the release of a person held in close physical custody. Yet there were cases to which it referred in England where "the writ was recognised as a proper remedy even though the restraint was something less than close physical confinement" (238). The court said of the writ:

"It is not now and never has been a static narrow formalistic remedy; its scope has grown to achieve its grand purpose - the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty." (243)

In the end it is necessary to consider whether on the facts of the case there is a restraint on liberty which is not authorised by law. The relevant liberty is freedom of movement.

211A public authority may do something in respect of a person which, in combination with other factors, results in that person's freedom of movement being curtailed. Whether the authority is thereby to be regarded as imposing the resulting restraint on that person's freedom of movement for the purposes of the writ may involve a cause and effect analysis. If the authority's action contributes to the restraint there may then be a policy choice as to whether the outcome is attributable to the authority for the purposes of habeas corpus.

212To the extent that the Commonwealth prevented the rescuees from landing on Australian soil it closed a possible avenue out of a situation in which they had been placed by other factors. There is nothing to be gained by the use of such perjorative terms as "self-inflicted". There is a number of circumstances which led the rescuees to find themselves on board the MV Tampa with, initially at least, no where to go. Unlike the plaintiffs in the Lo Pak and Leong Kum cases, they had no right to land. The closure of the port itself and the orders made by the Harbour Master were done under statutory authority and their validity was not challenged. The act of the Commonwealth in barring the landing of the rescuees in any event could not, in my opinion, constitute a restraint upon their liberty which was amenable to habeas corpus.

213The learned primary judge however has constructed a total restraint upon their freedom by virtue of the Commonwealth's commitment to retaining control of their fate. He referred to a constellation of factors which had the result, as he saw it, that the Commonwealth took "…the complete control over the bodies and destinies of the rescuees." As to one of those factors the evidence did not appear to support the conclusion that his Honour reached that the Commonwealth did not allow communication with the rescuees. It may be accepted that it did not facilitate communications and did not permit third parties to approach the vessel. Attempts to communicate with the rescuees through the vessel's owners were unsuccessful because of the attitude of the vessel's owners. The ultimate judgment made by his Honour was evaluative and weight should be given to his view of the case. In my opinion, however, the actions of the Commonwealth were properly incidental to preventing the rescuees from landing in Australian territory where they had no right to go. Their inability to go elsewhere derived from circumstances which did not come from any action on the part of the Commonwealth. The presence of SAS troops on board the MV Tampa did not itself or in combination with other factors constitute a detention. It was incidental to the objective of preventing a landing and maintaining as well the security of the ship. It also served the humanitarian purpose of providing medicine and food to the rescuees. The Nauru/NZ arrangements of themselves provided the only practical exit from the situation. Those arrangements did not constitute a restraint upon freedom attributable to the Commonwealth given the fact that the Captain of the Tampa would not sail out of Australia while the rescuees were on board. In my opinion, taken as a whole, there was no restraint on their liberty which could be attributed to the Commonwealth.

214The conceptual difficulty of constructing such a constraint is well illustrated by the nature of the relief granted by his Honour which could only be made effective by a direction that the rescuees be brought on to the mainland. His Honour's principal order had two elements, release of the rescuees and their transportation to mainland Australia. The second element was ancillary to the primary remedy which was "release". It begs the question release from what? That in turn raises the question what freedom did the rescuees have which the Commonwealth, without authority, constrained? It points to the reality that nothing done by the Commonwealth amounted to a restraint upon their freedom, they having neither right nor freedom to travel to Australia.

215In my opinion there was no detention, what was done was within power, the appeals should be allowed, the orders made by his Honour set aside and the applications before him, dismissed. The question of costs should be the subject of written submission, particularly having regard to the public interest which the respondents have sought to advance in bringing these proceedings.

Postscript

216The counsel and solicitors acting in the interests of the rescuees in this case have evidently done so pro bono. They have acted according to the highest ideals of the law. They have sought to give voices to those who are perforce voiceless and, on their behalf, to hold the Executive accountable for the lawfulness of its actions. In so doing, even if ultimately unsuccessful in the litigation they have served the rule of law and so the whole community.

I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French .